Opinion
January 19, 1982
Judgment, Supreme Court, Bronx County (Bloustein, J.), dated December 22, 1980 in favor of plaintiff Suzanna Woods against the City of New York in the sum of $9,000, with interest and costs, and in favor of the other defendants as against the plaintiffs, and dismissing the city's cross complaint, is unanimously modified, on the law and the facts, to the extent that the last decretal paragraph of the judgment is vacated, and the judgment by Suzanna Woods against the City of New York is reversed and the verdict in favor of said plaintiff against the City of New York is set aside and a new trial ordered as between the plaintiff Suzanna Woods and the City of New York, and the judgment is otherwise affirmed, without costs and without disbursements. There were errors in the charge to the jury. The most serious was the failure in this comparative negligence case to charge that defendants had the burden of proof of showing plaintiff's contributory negligence. (CPLR 1412.) Instead the court charged that plaintiff had the burden of proof on all issues. However, no exception was taken to this charge. The issue of liability was sharply and substantially contested. Plaintiff's injuries were serious and the jury's award inexplicably low for such serious injuries. It appears to us that the verdict of the jury was probably a compromise verdict, in which in addition to finding plaintiff partially responsible for the accident, the jury also compromised on liability and damages by finding the total amount for plaintiff's injuries much too low. Coupling this fact with the errors in the charge, we think the interest of justice would be best served by ordering a new trial on all issues between plaintiff and defendant City of New York. No claim of error is made on this appeal as to the remainder of the judgment.
Concur — Sullivan, J.P., Lupiano, Silverman and Fein, JJ.