SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
May 9, 1968
MICHAEL HANSEN, AN INFANT, BY LORETTA HANSEN, HIS GUARDIAN AD LITEM, APPELLANT,
COUNTY OF MONROE, DEFENDANT, AND LINCOLN HALL, INC., RESPONDENT. JOHN M. HANSEN, APPELLANT, V. COUNTY OF MONROE, DEFENDANT, AND LINCOLN HALL, INC., RESPONDENT
Appeal from judgment and order of Monroe Trial Term dismissing complaint in negligence action; order denied motion to set aside verdict.
Williams, P. J., Bastow, Goldman, Del Vecchio and Witmer, JJ.
Memorandum: The Trial Judge submitted nine questions to the jury. Only the first one, dealing with contributory negligence was answered, and the answer favored the defendant Lincoln Hall, Inc. The questions were inconsistent, extremely confusing, and did nothing to clarify the case so far as the jurors were concerned. The jurors were charged that, if they answered the first question affirmatively, they need not pass on any other questions. This was not a bit helpful from the viewpoint of an appellate review. In other words, the jury has not passed in any way upon the negligence or lack of negligence of the defendant, so that question is not before us for review. Furthermore, the answer to question 6 concerning the manner in which the defendant treated this plaintiff after his fall and whether such treatment contributed directly and proximately to the injuries, was not dependent in any way on the answer to the first question. The infant might have been contributorily negligent, but that did not relieve the authority in charge, and which was responsible for his treatment, from exercising a duty of care for his safety following the happening of the accident. Furthermore, the explanation given as to the application of the questions submitted was improper, inadequate and extremely unclear.
Judgment and order unanimously reversed on the law and facts and a new trial granted, with costs to the appellants to abide the event.
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