Opinion
October 27, 1941.
Present — Lazansky, P.J., Hagarty, Carswell, Taylor and Close, JJ.
Appeal by defendant, in an action for wrongful death, from a judgment in favor of plaintiff, entered on a jury verdict, and from an order denying defendant's motion to set aside the verdict and for a new trial. Judgment and order unanimously affirmed, with costs. The evidence sustains a finding of negligence on the part of the defendant and of freedom from contributory negligence on the part of plaintiff's intestate. The latter's intoxication did not constitute contributory negligence as matter of law in the circumstances, and defendant's negligence was a proximate and the responsible cause of the accident ( Fagan v. Atlantic Coast Line R.R. Co., 220 N.Y. 301, 312; Leeds v. New York Telephone Co., 178 id. 118, 121, 122; Rider v. Syracuse R.T. Ry. Co., 171 id. 139, 150), and the jury were properly charged on that subject. The court, having charged the jury substantially as requested by defendant, was not required to adopt the language of the request. ( Mullins v. Siegel-Cooper Co., 183 N.Y. 129, 140; Holbrook v. Utica Schenectady R.R. Co., 12 id. 236, 244, 245.)