
    (54 Misc. 645)
    MARTIN v. FORTY-SECOND ST., M. & ST. N. AVE. RY. CO.
    (Supreme Court, Appellate Term.
    June 6, 1907.)
    Trial—Instructions—Cure of Error.
    In an action for injuries to plaintiff by being struck by defendant’s car while crossing defendant’s track, error in instructing that if, when “plaintiff started to drive across the tracks in front of the approaching car, he was justified in assuming that it was safe to do so, then it is-up to the defendant to explain why the accident happened,” was not cured by the court’s affirmative reply to the statement of plaintiff’s counsel that, if any statement was made, that the defendant should explain, the jury should disregard it.
    Appeal from Municipal Court, Borough of Manhattan, Tenth District.
    Action by James H. Martin against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed, and new trial ordered.
    Argued before GILDERSLEEVE, P. J., and FITZGERALD and GOFF, JJ.
    William E. Weaver, for appellant.
    G. Washbourne Smith, for respondent.
   FITZGERALD, J.

It is not disputed that erroneous instructions were given in the first instance to the jury by the court below. All that is claimed is that by some subsequent remarks this error was remedied. The language complained.of is as follows:

“If, however, this accident resulted through no fault of the plaintiff, if you believe that, when he started to drive across the tracks in front of that approaching car, he was justified in assuming that it was safe to do so, then it is up to the defendant to explain why the accident happened.”

Exception to these remarks was taken, and plaintiff’s counsel stated that he consented to a withdrawal by the court of the statement that it is for the defendant to explain anything. The court, however, refused in positive terms to withdraw any of its charge. The only language which can at all be regarded as even appearing like a modification is as follows:

“Plaintiff's Counsel: If any statement was made that the defendant should explain, the jury should disregard it. The Court: Yes.”

The attention of the jury was not clearly called to the fundamental error to the rectification of which plaintiff’s counsel was endeavoring to guide the mind of the court, and the rulings were at best conflicting and confusing. Dambmann v. Met. St. Ry. Co., 180 N. Y. 384, 73 N. E. 59, 2 L. R. A. (N. S.) 309.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.  