
    Electra H. Mitchell, as Administratrix, etc., of George S. Mitchell, Deceased, Respondent, v. The T. A. Gillespie Company, Appellant.
    Third Department,
    September 11, 1912.
    Master and servant—negligence—trial — charge—refusal to charge.
    "Where in an action against a master to recover for death caused by negligence the court has only instructed the jury generally that in order for the plaintiff to recover they must find that the death was the result of the defendant’s negligence, without instructing them as to the degree of care required or the character of negligence which would render the defendant liable, it is error to refuse the defendant’s request to charge that he was only obliged to use reasonable care for the decedent’s safety.
    Such error is not cured because the court at the defendant’s request charged that he was not an insurer of the safety of the deceased.
    Where in such action it appears that the death was caused either by the master’s negligence or by unavoidable accident, and there was no intervening agency which could have been the proximate cause of death it is not error to refuse to charge that before the jury can find a verdict against the defendant they must find him guilty of some act of negligence and that that act was the proximate cause of the death.
    Such request to charge should not be granted upon the theory that the jury must specify by them verdict some one of the negligent acts with which the defendant was charged, for the jury may render a general verdict and need not point out the particular act or omission which was negligent.
    Betts, J., dissented,, with memorandum.
    Appeal by the defendant, The T. A. Gillespie Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 13th day of February, 1912, upon the verdict of a jury for $5,000, and also from two orders entered in said clerk’s office on the 1th and 9th days of February, 1912, respectively, denying the defendant’s motions for a new trial made upon the minutes.
    
      E. Clyde Sherwood and Amos H. Stephens, for the appellant.
    
      Howard Chipp and V. B. Van Wagenen, for the respondent.
   Per Curiajm:

We would have no hesitation in affirming the judgment appealed from except for the refusal of the court to charge as requested by the defendant’s counsel, that the defendant master was only obliged to use reasonable care for the safety of plaintiff’s intestate, its servant.

•In his main charge the learned trial court instructed the jury only generally that in order to find a verdict in behalf of the plaintiff they must find that the killing of her intestate was the result of negligence on the part of the defendant. There was no instruction as to the degree of care which the law imposed upon the defendant as master, nor was there any attempt to define the character of negligence which would render it hable. At the close of the charge the defendant’s counsel requested the court to further instruct the jury that the defendant in this action was not the insurer of the safety of the deceased, and it was only obliged to-use reasonable care for his safety.” In response to this request the court said: I will charge that the defendant was not the insurer of the deceased,” and the defendant excepted to the refusal to charge as requested.

It is not claimed, that this request did not embody the correct rule of law; but it is urged that because the court did charge that the defendant was not an insurer of the safety of the deceased the jury must have understood that the defendant’s duty was measured by reasonable care only.

We do not think the jury could have received such an impression, either from the main charge or from the separation by the court of the request made by defendant’s counsel.

There was a further request made by defendant’s counsel as follows: “I ask you to charge that before they [the jury] can find a verdict against the defendant' they must find the defendant was guilty of some act of negligence, and that that act was the proximate cause of the deceased losing his life.” The court refused this request, except to say that the jury must find some act of negligence on the part of the defendant.

This request embodied a correct rule of law, but strictly speaking it was not applicable to the facts proved. There was no intervening cause which might have produced the death of the intestate. His death was caused either by the negligence of the defendant (in the absence of carelessness on the part of the intestate, which, under the proofs, the jury were justified in finding was not the fact), or by unavoidable accident. There was no intervening agency or act which could have been the proximate cause of his death. If the request was intended to instruct the jury that they must specify by their verdict some one of the negligent acts which the plaintiff asserted the defendant had been guilty of, still the request was properly denied. It was the duty of the jury to determine that the defendant was actually guilty of negligence in some definite particular, and that such act or omission was the proximate cause of the injury, but they need not announce by their general verdict which particular act or omission they regarded as negligent. • The refusal of the' court to charge as requested constitutes* therefore, no ground for reversal.

For the error in refusing to charge the other request, however, the judgment and orders must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Betts, J., dissenting in memorandum.

Betts, J. (dissenting):

The jurors by the form of their verdict in this case have shown that they were neither deceived nor misled by the charge of the court. They brought in a sealed verdict in which they found “the defendant guilty of negligence in not having the car covered, the shaft not equipped with lights, and the wires not being properly adjusted.” None of these matters of negligence which the jury found had been committed by the defend.ant required anything more than reasonable care on defendant’s part to provide for the safety of its employees, including the deceased. Hence the jurors’, verdict showed that they did not charge the defendant with the exercise of any high degree of care in providing a reasonably safe place for its employees in which to do its work.

Speculation as to what the jury might possibly have done under the court’s charge is idle where, as here, the court has before it what they actually did do in the sealed verdict returned signed by each of the jurors. Neither the parties nor the courts should be burdened with the additional unnecessary labor, expense and delay of another trial in this case upon the judicial refinement shown to be absolutely without merit in this case.

I think the júdgment should be affirmed.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  