Parker v. Weisner — 65 A.D.2d 543

Majority

p. 543

(October 31, 1978)

Duncan Parker et al., Appellants, v Sidney Weisner et al., as Executors of Irving Weisner, Deceased, Respondents.

Judgment, Supreme Court, Bronx County, entered on March 11, 1977, in defendants’ favor, unanimously reversed, on the law, and vacated and the matter remanded for a new trial, with $75 costs and disbursements of this appeal to abide the event. On the facts adduced at trial there was no evidence of contributory negligence and it was error to charge the jury on that subject. The infant plaintiff’s presence in the garden area, near the fountain, the finial of which, it is contended, was caused to fall and strike the infant, "merely furnished the condition or occasion for the occurrence of the event rather than one of its causes” (Sheehan v City of New York, 40 NY2d 496 , 503; cf. Rivera v City of New York, 11 NY2d 856 ). Since the verdict was a general

p. 544

one, there is no way of knowing what part the charge on contributory negligence played in the jury’s verdict. Hence, the error was prejudicial and the verdict cannot stand. (See Eisenberg v Green, 33 AD2d 756 ; see, also, Stagnitti v Newberry, 1 AD2d 735 .) Concur—Murphy, P. J., Fein, Lane and Sullivan, JJ.

Cases cited

Sheehan v. City of New York 40 NY2d 496 N.Y. 1976-07-15 at 503 p. 543
Rivera v. City of New York 11 NY2d 856 N.Y. 1962-04-05 p. 543