Opinion
July, 1935.
In an action to recover damages for the death of plaintiff's intestate by reason of alleged negligence on the part of the defendant in the operation of his automobile, judgment reversed on the law and the facts and a new trial granted, with costs to abide the event. This case has been twice tried. Upon appeal to this court, the judgment entered upon the verdict of the jury in favor of the defendant at the first trial was reversed and a new trial granted on the ground that the verdict was against the weight of the evidence and for errors in the charge of the court. [ 241 App. Div. 541.] Upon the second trial, the jury has found again in favor of the defendant and, from the judgment entered upon this verdict, the present appeal has been taken. Ordinarily, in a case of this kind, we hesitate to interfere where two juries have found in favor of the defendant on the issues in the case. There is no substantial difference between the evidence on the present trial and that presented upon the first trial, and, in our opinion, there is ample proof of defendant's negligence and very little evidence of negligence on the part of the deceased. Still, under the circumstances, we should not interfere with the findings of the jury in favor of the defendant, were it not for the charge of the court upon the question of contributory negligence. This charge, we think, unduly stressed the question of contributory negligence to the prejudice of the plaintiff and prevented a fair trial, and, for this reason, a new trial is granted. Lazansky, P.J., Young, Hagarty, Tompkins and Johnston, JJ., concur.