Schagger v. Pfeiffer

Appellate Division of the Supreme Court of New York

Schagger v. Pfeiffer

244 A.D. 739, 278 N.Y.S. 949

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 15, 1935

StatusPublished

Cited by5 cases

This text of 244 A.D. 739 (Schagger v. Pfeiffer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schagger v. Pfeiffer, 244 A.D. 739, 278 N.Y.S. 949 (N.Y. Ct. App. 1935).

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Opinion

Judgment reversed on the law and the facts and new trial granted, costs to abide the event. In our opinion, the charge of the court that any negligence on the part of the plaintiff, no matter how slight, which contributed to the plaintiff’s condition would prevent his recovery, was improper and prejudicial to the plaintiff. The court had already ruled that, inasmuch as the plaintiff claimed negligence on the part of the defendant only for applying the cast and subsequent treatment, any conduct on the part of the plaintiff before the cast was put on could not be considered as a defense or excuse by the defendant for any negligence or improper treatment after the operation or application of the cast. The subsequent charge as to contributory negligence must have referred to contributory negligence on the part of the plaintiff after the cast was applied. Such negligence, if any, would not have defeated plaintiff as a matter of law. It could only be considered in mitigation of his damages. While no exceptions were taken to the charge, we think a new trial is required in the interests of justice. (DuBois v. Decker, 130 N. Y. 325; Bieber v. Alphonsus, 176 App. Div. 932.) The appeal from the order is dismissed. Lazansky, P. J., Young and Seudder, JJ., concur; Carswell and Johnston, JJ., dissent and vote to affirm.

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Judgment reversed on the law and the facts and new trial granted, costs to abide the event. In our opinion, the charge of the court that any negligence on the part of the plaintiff, no matter how slight, which contributed to the plaintiff’s condition would prevent his recovery, was improper and prejudicial to the plaintiff. The court had already ruled that, inasmuch as the plaintiff claimed negligence on the part of the defendant only for applying the cast and subsequent treatment, any conduct on the part of the plaintiff before the cast was put on could not be considered as a defense or excuse by the defendant for any negligence or improper treatment after the operation or application of the cast. The subsequent charge as to contributory negligence must have referred to contributory negligence on the part of the plaintiff after the cast was applied. Such negligence, if any, would not have defeated plaintiff as a matter of law. It could only be considered in mitigation of his damages. While no exceptions were taken to the charge, we think a new trial is required in the interests of justice. (DuBois v. Decker, 130 N. Y. 325; Bieber v. Alphonsus, 176 App. Div. 932.) The appeal from the order is dismissed. Lazansky, P. J., Young and Seudder, JJ., concur; Carswell and Johnston, JJ., dissent and vote to affirm.

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Bluebook (online)

244 A.D. 739, 278 N.Y.S. 949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schagger-v-pfeiffer-nyappdiv-1935.

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