Springer v. Great Atlantic & Pacific Tea Co.

7 A.D.2d 857, 181 N.Y.S.2d 900, 1959 N.Y. App. Div. LEXIS 10353

Opinion

In an action to recover damages for personal injuries and for medical expenses and loss of services, the appeal is from a judgment of the County Court, Westchester County entered on the verdict of a jury dismissing the complaint. Judgment reversed and a new trial ordered, with costs to appellants to abide the event. The case was submitted to the jury on an erroneous theory. The error in the main charge was emphasized when the court denied appellants’ request to charge and commented thereon (see, e.g., Robinson v. City of New York, 5 A D 2d 197). The court should have corrected the charge and instructed the jury in substance that it could find that the placing of packages on a cart, i.e., the placing of a carton on the bottom shelf of the cart, was negligent (see, e.g., Nachwalter v. Feldman, 284 App. Div. 984; Bergman v. Schultz, 274 App. Div. 1001; Abbott V. New York Public Lib., Astor, Lenox & Tilden Foundations, 263 App. Div. 314, 318; Robinson v. Atlantic & Pacific Tea Co., 184 Misc. 571, affd. 269 App. Div. 977). The interests of justice require a new trial (see, e.g., Swift v. Poole, 172 App. Div. 10). Wenzel, Acting P. J., Beldoek, Murphy, Ughetta and Kleinfeld, JJ., concur.