Stratton v. Brooklyn & Queens Transit Corp.

240 A.D. 979

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1933
• Status: Published

Opinion

Judgment reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. We are of opinion that the court erred in refusing defendant’s requests to charge as folios 300-301 of the record, “ except as already charged.” While the court in its main charge instructed the jury, as a matter of law, that the plaintiff could not recover unless he proved his freedom from contributory negligence, the court did not point out or explain to the jury the specific application of the rule of law to the facts in this case. The application of the rule to the. facts was involved in the defendant’s requests. The court failed to explain to the jury, as bearing on defendant’s negligence, that the plaintiff was bound to establish that the violation of the statute was a proximate cause of the accident. While we recognize the rule that where the original charge is sufficient a further request to charge may be refused on that ground (Storr v. New York Central R. R. Co., 261 N. Y. 348), we are of opinion that in this case the general charge was not sufficient. Lazansky, P. J., Young, Hagarty, Tompkins and Davis, JJ., concur.