Opinion
Argued January 13, 1982
Decided February 18, 1982
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ALEXANDER CHANANAU, J.
Douglas A. Boeckmann for John F. Doherty and another, appellants.
Louis G. Adolfsen, L. Kevin Sheridan and J. Robert Morris for Patricia Delgado Bokhari and another, appellants.
Alfred S. Julien and William D. Fireman for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
In this pre-1975 negligence action in which any negligence on the part of the plaintiff would have constituted a total bar to any recovery, appellants' main contention is that the trial court erred in refusing to instruct the jury in that part of its charge and recharge regarding the effect of contributory negligence. The appellants requested that the jury be charged as follows: "The law does not permit you to weigh the degree of fault of plaintiff and defendant but requires that if you find that plaintiff was guilty of any negligence your verdict be for defendant, even though you find that defendant was also negligent." The trial court refused the requested charge and instead instructed the jury that:
"The plaintiff was required to exercise reasonable care for his own safety. That is the same degree of care that a reasonably prudent person would have exercised for his own safety under the same circumstances."
"If you find that all of these defendants or some of them were negligent and that the negligence of each was a substantial factor in causing the plaintiff's injuries and [that] you find that the plaintiff was free * * * from contributing to his injuries * * * defendants will be liable".
Although the requested charge would have been preferable, we nonetheless conclude that it cannot be said as a matter of law that the omission constitutes reversible error in light of the clear import of the charge given by the trial court.
In our view it was error on the part of the trial court repeatedly to refuse defendants' requests for what was concededly a proper charge, the substance of which was never covered in the court's instructions to the jury. Accordingly, there should be a new trial.
The trial court properly instructed the jury as to what would constitute negligence on the part of defendants, what would constitute contributory negligence on the part of plaintiff, and then what would be the consequence, as to the verdict to be rendered, of a finding that defendants or some of them were negligent but that plaintiff was free from negligence. There was, however, no counterpart charge as to what verdict should be rendered if the jury were to find defendants negligent and also find plaintiff contributorily negligent.
An exception was taken and a request made that the court give the recommended charge set forth in Pattern Jury Instructions 2:35, as it now appears at pages 44-45 of the 1981 supplement, which explicitly describes the verdict to be rendered if both defendant and plaintiff were found to be negligent. The court refused to give this charge on the ground that it "would only create confusion in the minds of the jury".
After deliberating, the jury returned with a request that the court clarify the law regarding contributory negligence. The court then repeated, verbatim, its initial charge as to what would constitute contributory negligence, again without any instruction as to what verdict should be rendered in the event the jury found plaintiff contributorily negligent. Again exception was taken, based on PJI 2:35, that the court had failed to charge with respect to the consequence of a finding of contributory negligence in rendering the verdict. The specific request that the supplemental charge include the sentence from the Pattern Instruction, "If you find that plaintiff was negligent and that his negligence caused or contributed in any material way to the happening of the incident, he may not recover, whether his negligence was great or slight", was also denied.
The oft-repeated statement that a litigant is entitled only to a charge which fairly and accurately instructs the jury as to the applicable principles of law and not to a perfect charge or one that is a model of precision, should be inapplicable where, as here, the charge as given fails to address the application of the legal principles to the obligation of the jury in fashioning its verdict and the litigant requests a further instruction explicitly addressed to that subject which is unquestionably correct.
Chief Judge COOKE and Judges GABRIELLI, WACHTLER and FUCHSBERG concur in memorandum; Judge JONES dissents and votes to reverse and grant a new trial in an opinion in which Judges JASEN and MEYER concur.
Order affirmed.