Cronjaeger v. City & Suburban Homes Co.

119 N.Y.S. 181

Opinion

PER CURIAM.

The defendant is charged with maintaining a defective railing over an excavation in front of its premises, by reason of which plaintiff, an infant of four years and some months, was injured. At the very end of the charge, and just before the case was submitted to the jury, the court charged the plaintiff’s request, as follows:

“If the jury find that the mother of the plaintiff sent her child out into the street in the care and custody of a guardian, and if they further find that defendant maintained this defective railing in a negligent manner, then they must find for the plaintiff.”

This charge took the question of contributory negligence from the jury, and practically nullified the previous portions of the charge as to that issue.

There are other errors, which need not here be discussed, as a new trial should be granted for the prejudicial error above stated.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.