Robertson v. Kenmore-Town of Tonawanda Union Free School District

112 A.D.2d 17, 490 N.Y.S.2d 655, 1985 N.Y. App. Div. LEXIS 50646

Opinion

Judgment unanimously reversed, on the law, with costs, and a new trial granted. Memorandum: The trial court’s failure to include a reference to instructions and equipment in the written interrogatories given to the jury was erroneous in light of the court’s charge on those subjects. In our view this restricted the jury’s consideration, since the jury may have failed to consider grounds of liability as to which proof was presented by plaintiff (cf. Miocic v Winters, 66 AD2d 770, appeal dismissed 52 NY2d 896). This error was prejudicial and requires reversal and a new trial. We have considered plaintiff’s other claims and find them without merit. (Appeal from judgment of Supreme Court, Erie County, Joslin, J. — negligence.) Present— Callahan, J. P., Boomer, Green, O’Donnell and Pine, JJ.