Bunce v. City of New York

261 A.D. 838 | N.Y. App. Div. | 1941

Action for damages for personal injuries suffered by plaintiff as a consequence of falling at a ledge on a sidewalk adjacent to a building. Judgment for the defendant reversed on the law and the facts and a new trial granted, with costs to abide the event. The court erred in its charge to the plaintiff’s prejudice. It interjected into the jury’s deliberations a question of whether or not plaintiff fell because of a foreign substance, although there was no evidence of a foreign substance. It charged the jury that the verdict must be for the defendant if the jury “ are left in doubt as to the liability of the City or the right of the plaintiff here to recover * * This error was not corrected by the charge that the plaintiff was only obligated to prove her case by a fair preponderance of the evidence. The frequent reference to “ doubt ” tended to confuse the jury, as a doubt might persist in the mind of a trier of a disputed question of fact, that is, co-exist with a finding that the plaintiff had sustained the burden resting on her by a fair preponderance of evidence. The court also erred in declaring, “ I think she left us in some doubt as to what was under the shoe,” as well as in its refusal to charge that a person “ is not obliged at all times to keep in mind a defect on the highway ” which the person may have observed or of which she may have known. Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.