| N.Y. App. Div. | Nov 9, 1942
Although the learned trial judge in his instructions to the jury charged properly on the subject of culpable negligence, toward the close of the charge he instructed the jury that “ every man who operates an automobile upon the highway should drive it as a careful, reasonable and prudent individual would, with a just regard and due respect for the other users of the highway,” and then stated: " In other words, he must, if he is to drive an automobile upon the highway, drive it in a reasonably careful and prudent manner.” This is the rule in a civil action, but is not applicable here. (People v. Angelo, 246 N.Y. 451" date_filed="1927-11-22" court="NY" case_name="People v. Angelo">246 N. Y. 451.) Its statement may well have confused the jurors, leading them to believe that the defendant might be convicted for mere failure to use ordinary care. The trial judge, upon due request, declined to correct this erroneous charge. In the interests of justice, there must be a new trial. Lazansky, P. J., Hagarty, Cars-well, Johnston and Taylor, JJ., concur.