Connor v. Huntley , 269 A.D. 1003 ( 1945 )

Appeal by defendant in a negligence action from a judgment entered in the Broome County Clerk’s Office on May 26, 1945, in favor of the plaintiff for the sum of $6,000. Errors were committed at the trial in the charge to the jury. The court charged that it was undisputed that the damages were substantial and that, if the plaintiff was entitled to damages, he should recover a substantial sum. The court charged that there was no question that the injuries were received in the accident. These issues were litigated and were for the jury. The court in the main charge stated that the burden of proof was upon the defendant to prove that the plaintiff was guilty of contributory negligence. Apparently the Trial Justice had in mind that this was a death case when he charged that the burden of proof as to contributory negligence was upon the defendant. At the close of the charge the plaintiff requested a statement by the court that the burden was upon the plaintiff to show his freedom from contributory negligence. In the response by the court the impression may have been left with the jury that the statement in the main charge was correct. Judgment reversed and a new trial granted, with costs to abide the event. All concur.