Michelson v. Stuhlman , 272 N.Y. 163 ( 1936 )

Plaintiff Sima Michelson was riding in an automobile operated by her husband when the vehicle collided with another driven by the defendant. She sued for personal injuries alleged thereby to have been caused through the negligence of the defendant. Her husband brought a companion action to recover for alleged consequent loss of her services. The actions were tried together. The jury returned a verdict for the defendant upon which judgment in her favor was entered against both plaintiffs. On appeal by both to the Appellate Division, the judgment was affirmed. Plaintiff Sima Michelson alone appeals to this court.

The jury were instructed that, if appellant's husband "was at fault and the collision was due to his failure to operate his car reasonably and carefully, then there must be two verdicts for the defendant." In refusing to charge that as matter of law the appellant was not contributorily negligent, the trial judge said: "In view of the respective claims, I say it is either one person's fault or the other."

These rulings, we think, were erroneous in the case of the appellant. Assuming that the issue of her contributory negligence was for the jury (Nelson v. Nygren, 259 N.Y. 71), she was not to be denied a recovery merely because both drivers were at fault. In Prindle v. Rockland Transit Corp. (271 N.Y. 580) we approved a charge that recovery could be had for the death of the plaintiff's intestate, a passenger, if the collision was due to the combined negligence of both drivers, that the negligence of the defendant's employee did not have to be the sole cause. Our decision in the Prindle case controls this case. (See, also, Burd v. Bleischer, 208 App. Div. 499.)

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.

CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, CROUCH and FINCH, JJ., concur.

Judgments reversed, etc.