Opinion
June 28, 1949.
Appeal from Supreme Court.
Plaintiff's testate met with fatal accident as he drove his automobile out onto a two-lane State highway from a parking lot adjacent to its southerly side and was in collision with a truck-trailer motor vehicle owned by the corporate defendant and which was then being operated in an easterly direction by the other defendant. In rendering the verdict the foreman announced it was "because of negligence on both sides." In the main charge the jury was incorrectly instructed as to which party bore the burdens of proof as to negligence — the negligence of the defendants and the contributory negligence of the deceased. While later when attention was called to this and a correct instruction briefly stated, still the way and manner the correction was made was such that we cannot say that when the jury retired it had been so instructed, as to the law's placement of the respective burdens of proof, that they should have thereby had a clear understanding of the matter. Plaintiff had a clear legal right to have the jury correctly, positively and definitely instructed in such regard. It was also error for the court to have refused plaintiff's request to charge the rule as to the degree of proof in a death case as sanctioned in Noseworthy v. City of New York ( 298 N.Y. 76, 80). Judgment and order reversed on the law and a new trial ordered, with costs to abide the event. Foster, P.J., Heffernan, Brewster, Deyo and Bergan, JJ., concur.