Sommerman v. Scal , 1917 N.Y. App. Div. LEXIS 5204 ( 1917 )

Scott, J.:

The action is for damages for the death of plaintiff’s son, a lad of about ten years of age who was killed through a collision with an automobile on Grand street in the city of New York on April 28, 1915. The case upon the evidence was a very close and doubtful one especially as to the lack of care on the part of the deceased. Indeed if he were still living so that he could be heard on his own behalf, or if he had been somewhat older than he was we should say unhesitatingly that the finding that deceased was free from contributory negligence was against the evidence.

At the request of plaintiff’s counsel the court charged that “ in view of the congested-condition of Grand street * * * it was the duty of the. defendant to use great care and caution in proceeding along that street.” This was an inaccurate characterization of the degree of care incumbent upon the defendant, and was calculated to convey to the minds of the jury the idea that defendant was called upon to use a higher degree of care than the law imposed upon him,' which is that he should have used the care and caution which a careful and prudent driver would have exercised under the same circumstances. (Thies v. Thomas, 77 N. Y. Supp. .276.) o

In many cases this error would be insufficient to compel a reversal of the judgment and might "well be overlooked, but in the present [case the preponderance of the proof in plaintiff’s favor was so doubtful that even an error, which in another case might be unimportant, may have influenced the verdict.

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Clarke, P. J., Page, Davis and Shearn, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.