Bacon v. Celeste , 30 A.D.2d 324 ( 1968 )

Eager, J.

The defendant appeals from a judgment entered upon a jury verdict for plaintiff in a personal injury action. The plaintiff, a pedestrian, was struck by defendant’s automobile at a street intersection. We conclude that the charge of the court on the question of contributory negligence, in response to the request of the jury for further instructions, was so unclear as to preclude a proper consideration of the issue by the jury.

■ A crucial issue in the case was whether or not plaintiff had exercised proper care in crossing the street, including her observations, if any, as to traffic. During its deliberations, the jury returned to the courtroom and asked for further instructions “as to the law regarding contributory negligence ”. A juror stated: “I think the confusion lies in whether there is a degree of contributory negligence or whether it is an absolute constant; in other words, if it is ascertained one or the other party, for example, the plaintiff, contributed to a degree, whether that is tantamount to contributory negligence and that covers the fact.” The court replied, inter alia, that if ‘ ‘ the plaintiff substantially contributed to the happening of the accident, then, of course, the plaintiff is not entitled to recover.” Thereupon, defendant’s counsel asked the court to charge the jury that ‘ ‘ if they find the plaintiff negligent, even in the slightest degree in contributing to the happening of this accident, their verdict must then be in favor of the defendant.” The court, however, expressly refused to charge as requested and instead proceeded to give “ another further clarification ”, stating to the jury that ‘ ‘ negligence of the slightest of the defendant will be sufficient to impose liability on the defendant provided his negligence is a substantial factor in causing the plaintiff’s injury. Negligence, however slight of the plaintiff, will be sufficient to bar recovery by her provided her negligence is a substantial factor in causing her injury.” Defendant’s counsel excepted on the basis that the jury ‘ ‘ may get the idea that detracts from the slightness. * * * You modified it by saying ‘ substantial. ’ ”

The final instructions to the jury with emphasis on the word “ substantial ” could permit it to conclude that the plaintiff’s negligence would defeat her right to recovery only if it were substantial in degree. This is contrary to the settled law in New York that the contributory negligence of plaintiff and the alleged negligence of the defendant shall not be weighed and that the consequences of the concuring acts of negligence shall not be apportioned; if the plaintiff’s negligence in any degree contributes to cause the accident, that is sufficient to bar a recovery. (See McKay v. Syracuse R. T. Ry. Co., 208 N. Y. 359, 363; Fitzpatrick v. International Ry. Co., 252 N. Y. 127, 134; Jean v. Algonquin Hotel Co., 258 App. Div. 127.)

Generally, the term “ substantial factor ” may be used in a charge in a negligence case only in relation to a proper and adequate. discussion of the issue of causal relation or proximate cause. In this connection, the term ‘ ‘ substantial ’ ’ is used to denote the fact that negligence, in order to support a recovery, should have “ such an effect in producing the harm as to lead reasonable men to regard it as a cause ”. (Restatement, 2d, Torts, vol. 2, § 431; see, also, PJI 2:35, p. 128; Klein v. Herlim Realty Corp., 184 Misc. 852, affd. 269 App. Div. 934; Waterman v. State of New York, 19 A D 2d 264, affd. sub nom. Williams v. State of New York, 14 N Y 2d 793.) Thus it may be technically correct to say that contributory negligence is not considered as a proximate cause of a plaintiff’s injury unless it was a “ substantial factor ” in producing the injury, but it is also true that any negligence on the part of a plaintiff which contributes to cause the injury, precludes a recovery by plaintiff whether or not such negligence is “ substantial ’ ’ in degree. The subtleties involved in such a statement, without elaboration, are, however, too refined to be grasped by the ordinary jury.

Although a charge may be substantially correct as stating the applicable law, it is important that it be reduced to terms likely to be understood by the jury. (See Cohon & Co. v. Pennsylvania Goal & Coke Corp., 10 A D 2d 667.) Where, as here, a charge is so inadequate or of so confusing a character as to preclude fair consideration by the jury, a resulting judgment will be reversed and a new trial ordered in the interests of justice. (See Molnar v. Slattery Contr. Co., 8 A D 2d 95,100; U. S. Vitamin & Pharm. Corp. v. Capitol Cold Stor. Co., 21A D 2d 661.)

Although some of us in the majority are of the opinion that the trial court improperly excluded certain of the portions of the hospital record which were offered in evidence, we do not find it necessary to reach and determine the questions presented in this connection. The questions may not arise on a retrial and, in any event, we may assume that the trial court will properly rule in connection with the well-settled applicable principles.

The judgment for plaintiff should be reversed, on the law and on the facts, and in the interests of justice, and a new trial ordered, with costs and disbursements to abide the event.