Opinion
February 23, 1961
Appeal from the Erie Trial Term.
Present — Williams, P.J., Bastow, Goldman, McClusky and Henry, JJ.
Order reversed on the law and facts and verdict reinstated, with costs. Memorandum: The Trial Judge unequivocably charged the jury that the question to be determined by them was "Did the defendant in this particular case use reasonable care in lighting this stairway". Although erroneous under the facts here presented ( Kimbar v. Estis, 1 N.Y.2d 399, 403) this charge became the law of the case by reason of the failure to take exception thereto (Civ. Prac. Act, § 446; Brown v. Du Frey, 1 N.Y.2d 190, 196). The jury resolved the question of negligence as it related to the duty to light the stairway in plaintiff's favor and the verdict should not have been set aside. All concur, except McClusky and Henry, JJ., who dissent and vote for affirmance.