Vega v. City of New York — 33 N.Y.2d 942

Majority

p. 942

Valentin Vega, as Administrator of the Estate of Antonia Vega, Deceased, Appellant, v. City of New York et al., Defendants, and Wyckoff Heights Hospital of Brooklyn, Respondent.

Argued January 7, 1974;

decided February 13, 1974.

p. 943

Benjamin H. Siff, Jerome Edelman and Thomas R. Newman for appellant.

p. 944

Richard J. Burhe and John E. Morris for respondent.

Order reversed and a new trial granted, with costs to abide the event, in the following memorandum: The concededly erroneous instructions as to the burden of proof with respect to contributory negligence in the action for conscious pain and suffering was likely to create confusion in the minds of the jurors. Indeed, the Trial Judge himself, recognizing his error, sought to rectify the consequences of it by setting aside the verdict and ordering a new trial. It cannot be said, as a matter of law, that the ambiguous and contradictory instructions given the jury constituted harmless error.

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Stevens. Taking no part: Judge Babin.