Opinion
December 17, 1976
Appeal from the Niagara Supreme Court.
Present — Marsh, P.J., Mahoney, Dillon, Goldman and Witmer, JJ.
Judgment unanimously affirmed, without costs. Memorandum: Following a fire which damaged their tavern, plaintiffs commenced this negligence action, alleging that the fire originated in a coin-operated bowling machine, installed in their tavern by the defendant, and that the fire was caused by defendant's careless maintenance of the machine. Plaintiffs appeal from the judgment entered upon a jury verdict of no cause of action. It is initially claimed that the jury verdict is contrary to the weight of the evidence. In considering this contention, we are guided by the rule that "A jury verdict in favor of the defendant should not be set aside unless it clearly appears that the evidence so preponderates in plaintiff's favor that the verdict for defendant could not have been reached by any fair interpretation of the evidence [citations omitted]." (Yerdon v Baldwinsville Academy Cent. School Dist., 50 A.D.2d 714, 715.) Although plaintiffs' evidence that the fire began in the bowling machine is uncontroverted, they were also required to prove that defendant failed to exercise reasonable care in inspecting or repairing the machine, or that defendant failed to discover a defect which he reasonably should have discovered. In view of the absence of proof as to the standard of care which defendant should have met in maintaining the machine or as to defects which defendant should reasonably have perceived, and since defendant's serviceman testified that his repair of the machine three days before the fire remedied its overheating problem, we are unable to conclude that the jury verdict was not based upon a fair interpretation of the evidence. Plaintiffs next argue that the trial court erred in submitting the issue of contributory negligence to the jury in the absence of any evidence to support such a finding (see Willis v Young Men's Christian Assn. of Amsterdam, 28 N.Y.2d 375, 377-378). Since no exception was taken, plaintiffs may not now assign error to the court's charge (see CPLR 4110-b; Paul v Paul, 41 A.D.2d 560; see, also, Michalek v Martyna, 48 A.D.2d 1005). Significantly, in each of the cases upon which plaintiffs rely, the error was properly preserved for review (see Willis v Young Men's Christian Assn. of Amsterdam, supra, p 377; Hargraves v Agway Petroleum Corp., 48 A.D.2d 763; Jerry v Borden Co., 45 A.D.2d 344; Meyer v Brown-Harter Cadillac, 32 A.D.2d 1045). Lastly, plaintiffs contend that the trial court erred in its charge by failing to apply the general rules of law to the facts in issue and that reversal is thus required in accord with the holding in Zipay v Benson ( 47 A.D.2d 233). Aside from the fact that this case does not involve a complex factual controversy with several parties, a reading of the court's charge here, including the instructions given at the request of the parties, does not warrant the conclusion that it was of "no assistance to the jury in resolving the issues presented" (Zipay v Benson, supra, p 235) or that it inadequately precluded a fair consideration by the jury (see Arroyo v Judena Taxi, 20 A.D.2d 888, 889).