Bishop v. . Village of Goshen , 120 N.Y. 337 ( 1890 )

Parker, J.

(dissenting). I am constrained to dissent from the view which leads a majority of this court to affirm the judgment under review. It seems to me that the trial court committed an error in its charge to the jury of sufficient gravity to demand a reversal.

The "recovery had was for damages sustained by the plaintiff’s falling on the defendant’s sidewalk. The plaintiff claimed that the accident was solely the result of the defendant’s omission to keep the walk in a safe condition for public travel.

The court properly instructed the jury, in effect, that if the accident occurred without any fault on the part of the plaintiff contributing to the result, and was wholly due to the negligence of the defendant, that then the plaintiff was entitled to a verdict for the damages sustained.

Thereupon the plaintiff’s counsel requested the court to charge as follow's: “ I ask your honor also to charge the jury that if they find from the evidence that the plank curbing standing above the level of the sidewalk was of itself dangerous to public travel, and that was the proximate cause of the injury to the plaintiff, the defendant is guilty of negligence in allowing it to remain for so long a time.”

The case is wholly without evidence justifying a finding that the plaintiff’s fall was occasioned by any defect in the curbing, and, therefore, this request was improper. " The only effect possible of such an instruction would be to mislead the jury. But in its response to the request the court went further and said: “ I charge that if they find it was dangerous to public travel it would be, of course, negligence. The question of fact for the jury to determine is whether it was or was not dangerous.”

In view of the instruction already given, that the defendant’s liability was dependent upon whether it was negligent, the effect of this charge was to inform the jury that if the plank curbing was dangerous to public travel the defendant was negligent. And, as a necessary consequence, that if the plaintiff was without fault she might recover. They were permitted, therefore, to find a verdict against the defendant for a cause which was not the occasion of plaintiff’s injury. This was manifest error. It is no answer to say that the jury, in view of the evidence which informed them that the plaintiff’s fall was not owing to the defective curbing, probably based their finding upon some other ground.

It must be presumed in this court that they were governed by the charge of the trial judge, and that this erroneous instruction may have influenced their verdict.

Certainly, we ought not to assume, if we could be permitted to do so, that the jury had a clearer conception of the evidence than the counsel and the court as indicated by the request to charge and the response thereto.

The suggestion that the error may be deemed to have been cured by the response of the court to a request to charge, subsequently made by the defendant’s counsel, seems to be without merit.

If the request and response, considered together, fairly informed the jury that the erroneous instruction should not be followed, such would have been its legal effect.

The request was as follows: “ In connection with the request of the plaintiff’s counsel which your honor charged with regard to the jury finding that this sidewalk was dangerous, I ask your honor to charge that the jury must, in that event, find that it was not the cause of her slipping and falling upon the sidewalk.”

The court said: “I charge that; the request included that.”

Certainly it cannot be said that the jury were thus informed that the court had incorrectly instructed them; or directed to follow some other and different rule than that previously given.

On the contrary, they were distinctly told by the court, at the moment of charging the request of defendant’s counsel, that it was included in the request of -the plaintiff, in response to which the court committed the error heretofore pointed out.

Necessarily, therefore, they were informed that it was not in conflict with such previous instruction, but rather that it formed a part of the proposition which the court considered and charged before giving the erroneous instruction.

The judgment should be reversed and a new trial granted.

All concur with Potter J., except Follett, Ch. J., Parker and Vann, JJ., dissenting.

Judgment affirmed.