Opinion
January 28, 1944.
Appeal from Supreme Court, Bronx County, HOFSTADTER, J.
Herbert Kaufman for appellants.
John G. Reilly of counsel ( Thomas A. Clarke with him on the brief; Thomas F. Harrigan, attorney), for respondents.
Plaintiffs were injured as a result of the bursting of a hose used by the defendants in the delivery of hot tar and sued for damages resulting from defendants' alleged negligence. The trial court over exception submitted to the jury the question of the contributory negligence of the plaintiffs.
There is no evidence in the case to justify a finding by the jury that the plaintiffs had in any manner contributed to the bursting of the hose. The plaintiffs were in a place where they had a right to be and could not have supposed that the hose was likely to burst. It was, therefore, error to submit the issue of contributory negligence to the jury. ( Knoll v. Third Avenue R.R. Co., 46 App. Div. 527, affd. 168 N.Y. 592.) The error was substantial and prejudiced the plaintiffs since it suggested to the jury that the record contained facts which might show that the plaintiffs had acted carelessly.
The judgment should be reversed and a new trial ordered, with costs to appellants to abide the event.
MARTIN, P.J., TOWNLEY, UNTERMYER, DORE and CALLAHAN, JJ., concur.
Judgment unanimously reversed and a new trial ordered, with costs to appellants to abide the event.