Korbel v. Garrido

• Decision Date: 20 June 1966
• Citation: 26 A.D.2d 571,271 N.Y.S.2d 152
• Parties: Dorothy KORBEL et al., Appellants, v. Robert GARRIDO et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 152

271 N.Y.S.2d 152

26 A.D.2d 571

Dorothy KORBEL et al., Appellants, v. Robert GARRIDO et al., Respondents.

Supreme Court, Appellate Division, Second Department.

June 20, 1966.

Before CHRIST, Acting P.J., and BRENNAN, HILL, RABIN and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injury, plaintiffs appeal from (1) a judgment of the Supreme Court, Queens County, entered November 10, 1965, in favor of defendants, upon a jury verdict, and (2) an order of said court, entered October 7, 1965, which denied their motion to set aside the verdict.

Judgment reversed, on the law, and new trial granted, with costs to abide the event. No questions of fact have been considered.

Appeal from order dismissed as academic, without costs.

Plaintiffs were the operator and the passenger in an automobile which was stopped at a traffic signal when it was struck from the rear by defendants' vehicle. Defendants' counsel, in his opening to the jury, conceded that plaintiffs were free of contributory negligence. In our opinion, the court's repeated instructions to the jury that, in order to recover, plaintiffs were required to establish, Inter alia, their freedom from contributory negligence, and the court's refusal to charge that, as a matter of law, plaintiffs were free of contributory negligence constituted prejudicial error requiring a new trial (cf. Carter v. Castle Electric Contracting Co., Inc., 26 A.D.2d 83, 271 N.Y.S.2d 51, decided by this court on June 13, 1966). It is also our opinion that the charge as a whole inadequately stated the issues and the applicable law (cf. Logan v. Jackson, 1 A.D.2d 146, 148 N.Y.S.2d 466).