Mulero v. Great Gee Furniture Corp.

19 A.D.2d 700, 241 N.Y.S.2d 27, 1963 N.Y. App. Div. LEXIS 3369

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 1963
• Status: Published

Opinion

Judgment for defendant unanimously reversed, on the law and the facts, and a new trial ordered, without costs. Although a verdict for the defendant would be consistent with the record, the court’s -instructions to the jury were so inadequate as to preclude a fair consideration of the factual problem. (Molnar v. Slattery Contr. Co., 8 A D 2d 95, 100; Fox v. Hindus, 268 App. Div. 916.) At four-separate points in the charge the court instructed the jury that plaintiff administratrix was required to show absence of contributory negligence of the infant decedent; and in the one point at which the court placed with the defendant the burden on this issue, the instruction vías coupled with the proviso that “ on the whole ease ” plaintiff has the burden of- proof “ in the manner in which I hare outlined it ” to establish “ all of the matters which I have already mentioned.” Concur — Botein, P. J., Breitel, Rabin, Eager and Bergan, JJ.