SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
October 30, 1969
MICHAEL IWANICKI, AS ADMINISTRATOR OF THE ESTATE OF MARIA IVALADOW, DECEASED, APPELLANT,
STANLEY MUSZYNSKI ET AL., RESPONDENTS
Appeal from judgment of Erie Trial Term in automobile negligence action.
Goldman, P. J., Del Vecchio, Gabrielli, Moule and Bastow, JJ.
Memorandum: In this negligence action plaintiff's intestate, during his lifetime, was a passenger in a vehicle owned and operated by plaintiff which was in collision with a vehicle owned by one defendant and operated by the other. In its charge the court correctly instructed the jury that plaintiff might recover if the accident occurred through the concurring negligence of both operators -- plaintiff and defendant husband. It concluded, however, with the statement that if the jury found that plaintiff operator of the car in which his intestate was a passenger was proximately negligent "you will find for the defendant even though you may determine that the defendant also was careless and negligent." This, of course, was an erroneous statement of the law which the court refused to correct when the error was brought to its attention by suitable exception and request to change. A new trial is mandated.
Judgment unanimously reversed on the law and facts and new trial granted, with costs to abide the event.
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