Opinion
April, 1935.
Judgment reversed on the law and the facts and new trial granted, costs to abide the event. In our opinion, the charge of the court that any negligence on the part of the plaintiff, no matter how slight, which contributed to the plaintiff's condition would prevent his recovery, was improper and prejudicial to the plaintiff. The court had already ruled that, inasmuch as the plaintiff claimed negligence on the part of the defendant only for applying the cast and subsequent treatment, any conduct on the part of the plaintiff before the cast was put on could not be considered as a defense or excuse by the defendant for any negligence or improper treatment after the operation or application of the cast. The subsequent charge as to contributory negligence must have referred to contributory negligence on the part of the plaintiff after the cast was applied. Such negligence, if any, would not have defeated plaintiff as a matter of law. It could only be considered in mitigation of his damages. While no exceptions were taken to the charge, we think a new trial is required in the interests of justice. ( DuBois v. Decker, 130 N.Y. 325; Sieber v. Alphonsus, 176 App. Div. 932. ) The appeal from the order is dismissed. Lazansky, P.J., Young and Scudder, JJ., concur; Carswell and Johnston, JJ., dissent and vote to affirm.