
    James H. Martin, Respondent, v. The Forty-second Street, Manhattanville & St. Nicholas Avenue Railway Co., Appellant.
    (Supreme Court, Appellate Term,
    June, 1907.)
    Street railways—Operation—Actions—Instructions—Burden of proof.
    In an action to recover for personal injuries received while crossing the tracks of defendant’s railway, an instruction that “ 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 ” is erroneous and is not cured by the court’s assent to remarks of plaintiff’s counsel in which the attention of the jury was not clearly called to the error sought to be rectified and where the rulings were at best conflicting and confusing.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, tenth district, borough of Manhattan.
    
      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. Metropolitan St. R. Co., 180 N. Y. 384.

Gildersleeve and Goff, JJ., concur.

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