Opinion
October 10, 1972
In an action to recover damages for wrongful death and conscious pain and suffering, plaintiff appeals from a judgment of the Supreme Court, Rockland County, entered October 19, 1971, in favor of defendant upon a jury verdict. Judgment reversed, on the law, and new trial granted, with costs to abide the event. We have considered the questions of fact and have determined that we would not grant a new trial upon those questions. We are of the view that a jury would find the charge of the trial court difficult to comprehend. Thus, it was error for the court to refuse to specifically charge, as requested, that any negligence of the decedent's fellow employee and his employer could not be imputed to him and in further failing to make crystal clear the fact that defendant was not exonerated upon a finding that the decedent's employer was also negligent so long as defendant's negligence was a proximate cause of the accident. This failure to charge was highlighted by the trial court's repeated reference to the purported negligence of the decedent's employer and by the highly technical language of the charge as given. Martuscello, Acting P.J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.