Dore v. Long Island Rail Road

23 A.D.2d 502, 256 N.Y.S.2d 425, 1965 N.Y. App. Div. LEXIS 4995

Opinion

In a negligence action to recover damages for the wrongful death of plaintiff’s intestate, Cornelius Dore, the defendant railroad appeals from a judgment of the Supreme Court, Suffolk County, entered April 16, 1963 after trial, upon a jury’s verdict in favor of the plaintiff. Judgment reversed on the law and the facts, and a new trial granted, with costs .to abide the event. The ease having been given to the jury under the theories of ordinary negligence and the doctrine of “last dear chance,” and the jury having returned a general verdict, both theories must be sustained by the evidence or the verdict must be set aside (Thomas v. Central Greyhound Lines, 6 A D 2d 649, 653). We are of the opinion that, on this record, a finding of freedom from contributory negligence, under the ordinary negligence theory, is against the weight of the credible evidence and therefore requires .that a new trial be had. We also are of the opinion that upon the new trial, should different theories of negligence again be invoked, the trial court would be well advised to make use of the procedure available under the statute (CPLR 4111), which permits the rendition of a special verdict or a general verdict accompanied by written answers to written interrogatories (JasinsM v. New Tork Cent. B. B., 21 A D 2d 456, 461-463). (For prior appeal in this case, see Bore v. Wyer, 1 A D 2d 973.) Beldock, P. J., Christ, Brennan and Hopkins, JJ., concur. Ughetta, J., not voting.