Opinion
January, 1924.
Judgment and order reversed upon the law and the facts, and a new trial granted, with costs to abide the event. The case was close on the question whether the accident was not caused by the negligent handling of the hogshead which injured plaintiff, by the plaintiff or his fellow-employees. The learned trial justice charged the jury that contributory negligence was not a bar to plaintiff's recovery, but that in case they found both parties negligent they might still find a verdict for plaintiff, deducting such amount as they deemed proper on account of plaintiff's contributory negligence. The defendant did not except to this charge. The jury rendered a sealed verdict for plaintiff for $750, "holding the company partly responsible in not exercising reasonable care in providing suitable dunnage." In view of the form of the verdict and the recent decision of the Court of Appeals in Maleeny v. Standard Shipbuilding Corp. ( 237 N.Y. 250), that the common-law rule of contributory negligence applies to actions in State courts for a maritime tort, we think we must reverse and grant a new trial. Kelly, P.J., Jaycox, Manning, Young and Kapper, JJ., concur.