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[58 A.D.2d 1014 Page 1014] Judgment unanimously reversed, on the law and facts, and a new trial granted, with costs to abide the event. Memorandum: Plaintiff appeals from a judgment in favor of defendants entered after a jury trial. The complaint alleges negligence, breach of express and implied warranty and strict liability in tort. It also alleges a derivative cause of action and an action for property damage. The matter is before us for the second time. In the first appeal (41 A.D.2d 54, affd 33 N.Y.2d 151), we reversed a summary judgment in defendants' favor. Plaintiff received serious pelvic and genital injuries when the motorcycle he was driving, which was manufactured and distributed by defendants, collided with an automobile approaching him on a main highway. The accident occurred when the approaching vehicle made a left turn across plaintiff's lane of traffic. Upon impact plaintiff was thrown forward over the front wheel of his motorcycle and over the hood of the car, landing on the pavement. As he slid forward from the saddle, his hips and groin came first into contact with the gas tank between his legs and a metal package grid mounted on the tank. He claims that the negligent and defective design of the tank and the package grid proximately caused these injuries. Plaintiff alleges first that the verdict was against the weight of evidence, but we find no error in the court's refusal to set aside the verdict (see Boyle v Gretch, 57 A.D.2d 1047; McDowell v Di Pronio, 52 A.D.2d 749). Plaintiff next claims that the court's charge was erroneous. In charging the various causes of action on the four theories of liability alleged in the complaint, the court instructed the jury that before plaintiff could recover on any one of these theories the jury must find plaintiff free of contributory negligence. Plaintiff took exception to this instruction, contending that causative contributory negligence does not defeat plaintiff's right to recover in warranty or strict liability in tort. The established law is to the contrary. Before a plaintiff may recover under the theory of breach of warranty or strict liability in tort (and, of course, in negligence), he must prove that he is free of any negligence which caused or contributed to the cause of the accident (Codling v Paglia, 32 N.Y.2d 330, 343-344; see Micallef v Miehle Co., 39 N.Y.2d 376, 381; Bolm v Triumph Corp., 33 N.Y.2d 151, 159, supra). Plaintiff alleges that the charge generally was so unclear that a reversal is required in the interests of justice (see DiGrazia v Castronova, 48 A.D.2d 249). The court commenced its charge in this two-week trial on Friday afternoon. The instructions lasted approximately two hours. After the jurors returned from dinner, they requested the court to explain negligence, implied and express warranty and strict liability in tort. The court complied by repeating its instructions on these complex theories of law for another 28 minutes. The jury then deliberated two hours and returned a verdict of no cause of action. While the several elements of the various causes of action [58 A.D.2d 1014 Page 1015]

GENERE
Professionali e tecnici
PUBBLICATO
1977
12 luglio
LINGUA
EN
Inglese
PAGINE
4
EDITORE
LawApp Publishers
DIMENSIONE
67.5
KB

Altri libri di Supreme Court of New York