Opinion
October 19, 1970
In consolidated negligence and wrongful death actions to recover damages, defendant Hipper appeals from so much of an interlocutory judgment of the Supreme Court, Kings County, entered May 20, 1969, as is in favor of plaintiffs against him and in favor of defendant Mitani against plaintiffs on the issues of liability only, upon a jury verdict. Appeal dismissed insofar as it is from the portion of the interlocutory judgment which is in favor of defendant Mitani, with costs to said defendant against appellant (cf. Resseque v. J M K Constr. Corp., 31 A.D.2d 755; Helou v. Nationwide Mut. Ins. Co., 25 A.D.2d 179, mot. for lv. to app. den. 17 N.Y.2d 424). Judgment reversed insofar as it is in favor of plaintiffs against defendant Hipper, on the law, and, as between said parties, action severed and new trial granted, with costs to abide the event. The court has considered the questions of fact and has determined that it would not grant a new trial upon those questions. In our opinion, the original charge to the jury, to which appellant excepted, was clearly erroneous in that the jury was instructed that no such thing as an unavoidable accident existed. That error was not repaired by the subsequent charge on the recall of the jury; and, indeed, the attempted clarification created greater confusion. Appellant also excepted to that subsequent charge. "To obviate an erroneous instruction upon a material point, it must be withdrawn in such explicit terms as to preclude the inference that the jury might have been influenced by it" ( Chapman v. Erie Ry. Co., 55 N.Y. 579, 587; see, also, Smulczeski v. City Center of Music and Drama, 3 N.Y.2d 498, 501). The issue of the negligence of the parties was before the jury in the context of chain rear-end collisions between several automobiles traveling in the same direction on a traffic congested parkway which was wet from rain. Hence, the trial court's erroneous and confused charges assumed importance in the determination of the issue of negligence by the jury (cf. Zwilling v. Harrison, 269 N.Y. 461, 463) and we cannot say that the jury was not influenced by them. Rabin, Acting P.J., Hopkins, Munder, Martuscello and Benjamin, JJ., concur.