Dore v. Long Island R. Co.
| Decision Date | 25 January 1965 |
| Citation | 23 A.D.2d 502,256 N.Y.S.2d 425 |
| Parties | Mary DORE, as administratrix of the estate of Cornelius Dore, deceased, Respondent, v. The LONG ISLAND RAIL ROAD COMPANY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
George M. Onken, Jamaica, for appellant; Wm. F. McNulty, New York City, of counsel.
Alfred S. Julien, New York City, for respondent.
Before BELDOCK, P. J., and UGHETTA, CHRIST, BRENNAN and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for the wrongful death of plaintiff's intestate, Cornelius Dore, the defendant Railroad appeals from a judgment of the Supreme Court, Suffolk County, entered April 16, 1963 after trial, upon a jury's verdict in favor of the plaintiff.
Judgment reversed on the law and the facts, and a new trial granted, with costs to abide the event.
The case having been given to the jury under the theories of ordinary negligence and the doctrine of 'last clear chance,' and the jury having returned a general verdict, both theories must be sustained by the evidence or the verdict must be set aside (Thomas v. Central Greyhound Lines, 6 A.D.2d 649, 653, 180 N.Y.S.2d 461, 465).
We are of the opinion that, on this record, a finding of freedom from contributory negligence, under the ordinary negligence theory, is against the weight of the credible evidence and therefore requires that a new trial be had.
We also are of the opinion that upon the new trial should different theories of negligence again be invoked, the trial court would be well advised to make use of the procedure available under the statute (CPLR 4111), which permits the rendition of a special verdict or a general verdict accompanied by written answers to written interrogatories (Jasinski v. New York Cent. R. R., 21 A.D.2d 456, 461-463, 250 N.Y.S.2d 942, 947-949). [For prior appeal in this case, see Dore v. Wyer, as trustee, etc., 1 A.D.2d 973, 150 N.Y.S.2d 886.]
UGHETTA, J., not voting.
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