Purcell v. Doherty

434 N.E.2d 255, 55 N.Y.2d 985, 449 N.Y.S.2d 186, 1982 N.Y. LEXIS 3161

• Court: New York Court of Appeals
• Decided: February 18, 1982
• Status: Published

Opinions

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

In this pre-1975 negligence action in which any negligence on the part of the plaintiff would have constituted a total bar to any recovery, appellants’ main contention is that the trial court erred in refusing to instruct the jury in that part of its charge and recharge regarding the effect of contributory negligence. The appellants requested that the jury be charged as follows: “The law does not permit you to weigh the degree of fault of plaintiff and defendant but requires that if you find that plaintiff was guilty of any negligence your verdict be for defendant, even though you find that defendant was also negligent.” The trial court refused the requested charge and instead instructed the jury that:

“The plaintiff was required to exercise reasonable care for his own safety. That is the same degree of care that a reasonably prudent person would have exercised for his own safety under the same circumstances.”

“If you find that all of these defendants or some of them were negligent and that the negligence of each was a substantial factor in causing the plaintiff’s injuries and [that] you find that the plaintiff was free * * * from contributing to his injuries * * * defendants will be liable”.

Although the requested charge would have been preferable, we nonetheless conclude that it cannot be said as a matter of law that the omission constitutes reversible error in light of the clear import of the charge given by the trial court.