Violante v. Ronald's Hair Fashions, Inc.

43 A.D.2d 736, 350 N.Y.S.2d 449, 1973 N.Y. App. Div. LEXIS 2850

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 1973
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Westchester County, entered March 15, 1973, which dismissed the complaint of plaintiff after a jury trial. The trial court dismissed the complaint as to defendants Miller Realty Associates and Edgar J. Bitz and the jury returned a verdict in favor of' defendant Ronald’s Hair Fashions, Inc. Judgment affirmed as to defendants Miller Realty Associates and Edgar J. Bitz, without costs, and, as to defendant Ronald’s Hair Fashions, Inc., judgment reversed, on the law, action severed and new trial granted, without costs. Appellant presented no questions of fact on the appeal. In our opinion, the trial court committed error when it charged the jury: “If you cannot reach an agreement on the question of plaintiff’s freedom from contributory negligence * * * then, of course, you have to return a verdict for the defendant” (Ronald’s Hair Fashions, Inc.). The court in effect was instructing the jury that they could not disagree as to the question of contributory negligence, but must return a verdict for defendant Ronald’s Hair Fashions, Inc. Hopkins, Acting P. J., Munder, Martuscello, Shapiro and Brennan, JJ., concur.