
    J. John Amaro, Respondent, v City of New York, Appellant.
    Argued February 17, 1976;
    decided June 8, 1976
    
      
      W. Bernard Richland, Corporation Counsel (Bernard Bur-stein and L. Kevin Sheridan of counsel), for appellant.
    I. Since all who might come into the area, including plaintiff, were fully aware of the condition and of the safe alternatives, an accident was not foreseeable and not within the orbit of ordinary vigilance. (Nucci v Warshaw Constr. Corp., 12 NY2d 16; Shields v Van Kelton Amusement Corp., 228 NY 396; Utica Mut. Ins. Co. v Amsterdam Color Works, 284 App Div 376; Brodish v Diesel Constr. Co., 32 AD2d 785; Van Leet v Kilmer, 252 NY 454; Williams v State of New York, 308 NY 548; Olsen v State of New York, 30 AD2d 759, 25 NY2d 665; Hirschman v Hirschman, 4 AD2d 630; Tatik v Miehle-GrossDexter, 28 AD2d 1111, 23 NY2d 828.) II. If a danger was foreseeable to defendant, then, by the same evidence, it was foreseeable to plaintiff also, and hence plaintiffs evidence of negligence concurrently establishes contributory negligence. Specifically, plaintiff was contributorily negligent by proceeding in the dark toward a sliding pole with a 25-foot drop, when he could not see, hoping only to feel the pole before stepping in the hole that necessarily had to be around the sliding pole, when he could instead have switched on the lights, or called to other firemen to do so, or used the lighted stairs nearby—all safe alternatives of which plaintiff was fully aware. (Nucci v Warshaw Constr. Corp., 12 NY2d 16; Brodish v Diesel Constr. Corp., 32 AD2d 785; Greelish v New York Cent. R. R. Co., 29 AD2d 159; Utica Mut. Ins. Co. v Amsterdam Color Works, 284 App Div 376; Shields v Van Kelton, 228 NY 396; McFarlane v City of Niagara Falls, 247 NY 340; Siegelman v Truelson, 39 AD2d 722; Gill v Anderson, 39 AD2d 941; Maggio v Mid-Hudson Chevrolet, 34 AD2d 567; Gugliemini v Conigliaro, 35 AD2d 524, 29 NY2d 930.) III. If the complaint is not to be dismissed, then there should be a new trial. The court committed three affirmative prejudicial errors in its charge to the jury, all relating to the close issue of contributory negligence, to which timely and specific exceptions were taken. Any one of these alone, if error, tainted the resolution of the issue and rendered the trial unfair. (Maggio v Mid-Hudson Chevrolet, 34 AD2d 567; Piarulli v Lason, 35 AD2d 605; Raolaslovic v New York Cent. R. R. Co., 245 NY 91; Becker v Beir, 275 App Div 146; Hart v Scribner, 44 AD2d 59; 
      Jones v National Biscuit Co., 29 AD2d 1033; Rodak v Fury, 31 AD2d 816.)
    
      Alfred S. Julien and Helen B. Stoller for respondent.
    I. The evidence supported the jury’s finding that defendant’s negligence was the proximate cause of the accident. (Utica Mut. Ins. Co. v Amsterdam Color Works, 284 App Div 376; Shields v Van Kelton Amusement Corp., 228 NY 396; Olsen v State of New York, 30 AD2d 759, 25 NY2d 665; Nucci v Warshaw Constr. Corp., 12 NY2d 16; Van Leet v Kilmer, 252 NY 454; Brodish v Diesel Constr. Co., 32 AD2d 785; Winnick v New York State Elec. & Gas Co., 38 AD2d 623; Greelish v New York Cent. R. R. Co., 29 AD2d 159, 23 NY2d 903; Flynn v City of New York, 35 AD2d 936; Tatik v Miehle-Gross-Dexter, 28 AD2d 1111.) II. The issue of contributory negligence was a question of fact properly submitted to the jury and the finding that plaintiff was not contributorily negligent was supported by the evidence. (Broderick v Cauldwell-Wingate Co., 301 NY 182; Culver v Gloo, 27 AD2d 698; Boerio v Haiss Motor Trucking Co., 7 AD2d 228; Bailey v Wagner, Whirler & Derrick Corp., 266 App Div 875; Kaplan v 48th Ave. Corp., 267 App Div 272; Luneau v Elmwood Gardens, 22 Misc 2d 255; Russell v New York State Elec. & Gas Corp., 276 App Div 44; Artz v Todd, 191 Misc 497; O’Connell v Epco Prods., 37 AD2d 842; Cesario v Chiapparine, 21 AD2d 272.) III. There were no errors prejudicial to defendant in the charge to the jury. (Artz v Todd, 191 Misc 497; Jones v National Biscuit Co., 29 AD2d 1033; Hart v Scribner, 44 AD2d 59; Nieves v Manhattan & Bronx Surfacing Tr. Auth., 31 AD2d 359; Palmer v Palmer, 31 AD2d 876, 27 NY2d 945; Roy v Reid, 38 AD2d 717; Matter of Brown v Murphy, 43 AD2d 524; Murphy v New York State Thruway Auth., 23 Misc 2d 1078; Durham v Melly, 14 AD2d 389; Rodak v Fury, 31 AD2d 816.)
   Gabrielli, J.

Plaintiff, a New York City fireman, sustained

serious injuries when, in responding to an urgent fire alarm, he fell to the main apparatus floor of the firehouse through an open, unguarded sliding pole hole in a darkened second-floor dormitory room. Plaintiff charged the defendant city with negligence in failing to maintain adequate lighting and guards at the pole hole. The jury agreed and returned a verdict in favor of plaintiff in the sum of $1,600,000. An unanimous Appellate Division affirmed as to liability but directed a new trial as to damages alone unless plaintiff stipulated to a reduction of damages to $750,000 and plaintiff so stipulated.

On this appeal, the city argues, inter alia, that reversible error was committed because the jury was charged: (1) that plaintiff was confronted with an emergency situation; (2) that fire department regulations require use of the sliding pole in emergencies; and, (3) that the use of alcohol was "not in this case”. We reject each claim.

At trial, plaintiff testified that on the day of the accident he had sandwiches and four to six ounces of wine for lunch, and that he had consumed no other alcoholic beverages that day. He stated that following lunch he participated in a sports activity in a park near his home, and then reported for work.

At the 6:00 p.m. daily roll call, his commanding officer, Lt. Steyert, inspected the appearance and condition of the firemen coming on duty, including the plaintiff, and found plaintiff fit for duty noting that fact in his daily report log. Lt. Steyert testified that there was no odor of alcohol about plaintiff’s person. Following roll call, plaintiff and other firemen drank coffee and prepared their dinner in the main-floor kitchen. At approximately 7:15 p.m., plaintiff left the kitchen and went to the second-floor lavatory; the upstairs was lighted at that time. Shortly thereafter, Lt. Steyert, then in his second-floor office, and unaware of plaintiff’s presence on that floor, left his work and turned off the overhead lights on his way downstairs.

A drill was scheduled at 7:30 p.m., and when Lt. Steyert realized that plaintiff was not present, he called upstairs to him and plaintiff answered that he would be right down. The drill did not take place because a fire alarm sounded in the meantime. Plaintiff testified that when he left the lavatory, the upstairs area was very dark; and that as he stepped out of the lavatory, the fire alarm began to ring and he automatically listened to the number of gongs and determined that his company was being called for a "first due” alarm; thus, he immediately headed for the nearest pole hole since, as the testimony shows, "[yjou’re supposed to respond to the floor by pole hole when the alarm goes off. * * * That’s the rule.” Plaintiff further testified that he was unable to discern the pole or pole enclosure and that there was no light coming up through the pole hole; hence, he entered the darkened room with his arms outstretched attempting to locate the pole, and then his hands hit something, and that was the last thing plaintiff could remember because he fell through the hole and onto the floor below very rapidly.

Although the city attempted to adduce evidence that plaintiff acted under the influence of alcohol, the trial court ruled it inadmissible and eventually found it necessary to charge:

"[T]hat alcohol or the influence of alcohol is not in this case; as a matter of law I tell you this. There is no evidence for your consideration that is probative, that is valuable in the Court’s opinion for you to make any such deductions. On the contrary even from the defendant’s exhibits it clearly shows and from the testimony of Dr. Seley, I believe, and from the testimony of all the other witnesses that said he was not under the influence of alcohol, there clearly is nothing from which you could infer that he was. The medical records, the medical evidence that we have does not support it nor does the testimony.”

The trial court also charged the jury with respect to the circumstances under which the mishap occurred that:

"Now the evidence without contradiction shows that the plaintiff was required to respond to signal 3762 by sliding [down] the pole in question, that is pole 'A’ or any pole, but by pole. His job was to get to the fire apparatus * * * by sliding the pole. If that was an emergency he had no choice. He must take a pole because that is an alarm and either whether first due or second due it was an emergency condition and the evidence is clear that it was an emergency condition.

"* * * A person faced with an emergency condition and who acts without opportunity for deliberation may not be charged with negligence if he acts as a reasonably prudent person would act with the same duties under the same emergency circumstances.”

Finally, referring to the rules of the fire department, the court charged:

"If you believe from the evidence that the plaintiff was responding to an alarm and that there was an emergency then in that event the plaintiff had the right to use the sliding pole and more than that was compelled to use the sliding pole under Section 19.3.9 of the Rules of the Uniformed Force of the Fire Department of the City of New York because that is the method by which you use in an emergency, the pole”, to which charge the city excepted.

The city attempted to introduce a laboratory report on a blood sample allegedly taken from plaintiff by a fire department doctor some five hours following the incident. The trial court, properly we think, ruled the report inadmissible because an adequate foundation was not laid for its admission.

The chain of custody of any blood sample must be established (see People v Connelly, 35 NY2d 171, 174-175) and the failure to do so may be excused only where the circumstances provide reasonable assurances of the identity and unchanged condition of the sample (People v Porter, 46 AD2d 307 [Cooke, J.]). Here the doctor who drew the sample gave it to a fire department chauffeur whose name he could not recall and who was not produced at trial. Moreover, the sample was given to the chauffeur on Saturday evening and not delivered until Monday morning, "at the earliest”, leaving over 36 hours of custody completely unaccounted for. No testimony was adduced to indicate who received the sample at the laboratory, its condition on receipt, the size of the vial containing the specimen, whether it was refrigerated during the long weekend, how the vial was labeled or identified, or the quantity or condition of its contents upon arrival. Hence, there can be no reasonable assurance of the unchanged condition of the blood sample. Nonetheless, it is argued that there is no indication that the sample was tampered with while it was in the chauffeur’s possession and that it ought to be admitted for that reason. This claim, of course, begs the question for the driver was never produced and could not be examined regarding his care and custody of the sample (see Durham v Melly, 14 AD2d 389).

To be distinguished are the results in People v Malone (14 NY2d 8) where it was specifically found, contrary to the facts here, that a nonalcoholic preparation was used to sterilize the arm and "that the specimen was not accessible to persons not called as witnesses” (p 11); and People v Porter (46 AD2d 307, supra) where then Mr. Justice Cooke emphasized that there was "no question of the identity or condition of the sample received” by the laboratory and that the only period unaccounted for was "the brief interlude between delivery of the sample to the chemist and his analysis of it” (p 311); and, in People v Connelly (35 NY2d 171, supra) where there was no missing link in the chain of custody and objections were raised only as to how custody was maintained, a matter which we held involved questions of degree "best resolved during a full voir dire at trial” (p 176). In short, the trial court ruling in this case with respect to the admissiblity of the blood sample report was entirely correct.

Nor do we find any error in the exclusion of the fire department doctor’s testimony that he detected an odor of alcohol on plaintiffs breath. His testimony, in light of its potentially prejudicial impact, was required to be weighed against the complete dearth of other probative evidence to support the testimony, along with the abundance of other countervailing evidence. On this record and in these circumstances the admissibility of the preferred testimony rested within the discretionary power of the Trial Judge, the exercise of which was left undisturbed by an unanimous Appellate Division. In sum, the charge regarding alcohol was proper.

The city also asserts that a fire alarm may not be considered an emergency for a fireman because he is trained to expect such signals. We are unable to adopt this reasoning in the case before us. The emergency doctrine has never been so limited nor should it be. The essence of the doctrine is that in sudden and unexpected circumstances where an actor is left little or no time for thought, or is reasonably so disturbed or excited that he must make a speedy decision and cannot weigh alternative courses of action, he "cannot reasonably be held to the same conduct as one who has had full opportunity to reflect” (Prosser, Law of Torts [4th ed], § 33, p 169; cf. Wagner v International Ry. Co., 232 NY 176). As Chief Justice Holmes once put it, "A choice may be mistaken and yet prudent” (Kane v Worcester Cons. St. Ry. Co., 182 Mass 201, 202). Here the situation confronting plaintiff was sudden and unforeseen in that plaintiff was not aware that there would be a combination of events such as the sounding of the alarm at the time set for the drill, along with the lack of illumination when he was responding to the alarm. Moreover, plaintiff testified that a fire alarm creates an emergency situation, and a witness for the defense agreed. We conclude, therefore, that under the circumstances an emergency charge was properly given.

Finally, while under other circumstances the charge with respect to the meaning of the fire department rule (§ 19.3.9) might be questioned, the error, if any, was insubstantial for plaintiff testified that he understood the rule to require the use of the sliding pole in emergencies (i.e., after an alarm sounded); and not one of the 13 other fire department employees and officials called to testify contradicted plaintiff. Thus, the uncontroverted evidence on the record was that the pole had to be used and the fact that the trial court stated that to be a departmental rule was inconsequential.

The critical issues at trial were whether the city should have foreseen an accident of this kind and taken some precautions to guard against it, and whether plaintiff was contributorily negligent in the circumstances under which the incident occurred. Hence, they were principally questions for the triers of fact to resolve, and the jury having resolved them against the city, and the Appellate Division having unanimously affirmed their findings, we may not disturb their determination absent some pertinent, strident error in the record— which we do not find.

Accordingly, the order of the Appellate Division should be affirmed.

Jasen, J.

(dissenting). The order of the Appellate Division should be reversed and a new trial ordered.

At the time of the accident, plaintiff John Amaro, 38 years old, was a New York City fireman of 13 years’ experience. On February 4, 1967, he was stationed at a firehouse in Brooklyn and was assigned to a night tour of duty, 6:00 p.m. to 9:00 a.m., the following morning. At noon of that day, he consumed, for his lunch, some sandwiches and a glass of wine. After playing football in Prospect Park for some time, he reported for work. At roll call, his appearance was checked and he was marked fit for duty. After lineup, he, along with the other firemen, assembled in the kitchen to prepare their evening meal, a meal which would not be eaten until completion of a drill scheduled for 7:30 p.m. At 7:15 p.m., Amaro climbed a set of stairs to the second floor and entered a lavatory located on that floor of the firehouse. Lieutenant Steyert, the officer in charge of the station, was also upstairs, in his office in another portion of the second floor. Shortly before 7:30 p.m., Steyert noted that the lights on the second floor were lit at the time he descended the stairs. When Steyert assembled the firemen for the scheduled drill, he noticed that Amaro was not present. He walked to the stairway and shouted, "Drill time, John, come on down.” Amaro responded, "Be right down, Lou”, and emerged into a room that he claimed was totally dark. The only light he could see was a "faint glow” from a light on Steyert’s desk. When he left the lavatory, he headed for the stairway. As he reached the middle of the room, the fire alarm sounded. Instead of proceeding to the stairway, he elected to use a sliding pole located on the opposite side of the room. He changed directions and began to run. He ran towards the pole in total darkness with his arms outstretched. The pole was in a recessed cabinet situated between two bunk beds. Although designed to have two protective half doors, one door was missing and the other was permanently pushed in. The plaintiff ran into either the door or the pole and fell through the hole to the floor below. As a result of the fall, plaintiff sustained severe injuries.

Plaintiff commenced a tort action against the City of New York, alleging that the city was negligent in not maintaining proper lighting around the pole area and in not protecting the pole enclosure with operable doors. In its defense, the city maintained that the plaintiff was guilty of contributory negligence. At the trial, a fire department medical officer testified that when he visited plaintiff at a hospital on the night of the accident, he detected "an odor of alcohol” on Amaro’s breath. Upon objection, the jury was directed by the court to disregard this testimony, the court ruling that this observation was too remote from the time of the injury. The medical officer continued to testify, stating that he directed that the plaintiff’s blood be tested. A sample was taken and sent to a private medical laboratory. Since the accident occurred on a Friday night, the test was not conducted until Monday. The analysis revealed the presence of .09% alcohol in the plaintiff’s bloodstream, an amount that is abnormally high. The court excluded the test results from the jury’s consideration on the ground that the medical officer could not name the driver who took the sample from hospital to laboratory and, thus, a chain of custody was not established. The man believed to be the driver had since retired from the fire department and had moved to Topeka, Kansas, making it difficult for the city to produce him. In its charge, the court instructed the jury that the issue of intoxication was entirely out of the case. Exception was duly taken. The jury returned a verdict for the plaintiff on the issue of liability. After the verdict was announced, the court told the jury, "I can only say for the record that the record supports your verdict.” In this bifurcated trial, the jury then proceeded to consider the question of damages. The jury awarded the plaintiff damages in the amount of $1,600,000. The Appellate Division found the verdict to be excessive and ordered a new trial of only the damages issue unless the plaintiff consented to a reduced verdict of $750,000. After the plaintiff so consented, the court granted the city’s motion for leave to appeal.

In my view, the exclusion of all of the city’s evidence on the intoxication issue was a grave error and was so prejudicial to the city as to require reversal. It was plain from the start of the case that the city would predicate its defense on its contention that plaintiff, his judgment impaired by alcohol, rashly elected to slide down a pole when the alarm rang, rather than continue in an orderly fashion to the stairway. Under this theory, the plaintiff’s fall was not caused by a failure to maintain proper lighting around the pole, but by plaintiff’s inability, due to his inebriated condition, to make appropriate mental judgments and to co-ordinate his physical movements. The issue was so critical to the case that the plaintiff, the first witness to testify, went to great lengths in his direct testimony to deny that he had been drinking on duty. Lieutenant Steyert and another fireman present at the firehouse at the time of the accident were closely questioned, by both parties, as to whether any alcohol was imbibed in the hour and a half before the accident. Even a casual reading of the record would reveal the fact that the issue of whether the plaintiff was intoxicated was critical to the issue of liability.

The medical officer’s statement that he detected an odor of alcohol on plaintiffs breath while in the hospital three hours after the accident should not have been excluded. Rather than being "too remote”, the statement was extremely probative. If there was still alcohol remaining on the plaintiffs breath after so much time had elapsed, the obvious and compelling inference is that plaintiffs alcoholic intake must have been quite substantial. If the jury believed the doctor’s testimony, it could validly infer that the plaintiff was in a condition of extreme inebriation at the time of the accident.

The majority contends that the trial court could properly, in an exercise of discretion, exclude the doctor’s testimony because this testimony might have a "prejudicial impact” (at p 36). Notably, the majority offers no citation for this rather dubious proposition. Of course, the doctor’s testimony would be damaging, if- not fatal, to the plaintiffs claim. However, relevant evidence, whatever its potential impact, is never excludable simply because one party’s position might be weakened thereby. (Guilianelle v Brownell, 7 AD2d 691, 692.) All facts that have a rational probative value are admissible into evidence unless " 'some specific rule forbids’ ”. (Ando v Woodberry, 8 NY2d 165, 167.) Whether a particular fact is relevant "is a question of logic, not of law.” (Richardson, Evidence [10th ed], § 146, p 116.) Evidence that plaintiff, the alleged victim of negligence, had a strong odor of liquor on his breath even hours after the accident leads logically to the conclusion that the negligence, if any, was his own.

There is, of course, the testimony of Lieutenant Steyert that he marked the plaintiff fit for duty, did not observe him to be intoxicated, and that no drinking was permitted at the firehouse. The lieutenant’s credibility is subject to question since it would be against his interest to admit that he marked the plaintiff fit for duty when, in fact, he was under the influence of alcohol. Moreover, there is evidence in the record that firemen who file complaints about fellow workers are considered "rats”. Thus, the conflicting testimony of the doctor and the lieutenant created an issue of fact that the jury had to resolve. The majority contends that the doctor’s testimony was required to be weighed against the absence of other probative evidence to support his testimony (at p 36). First, there was other probative evidence—the blood test report—to substantiate the doctor’s testimony. Secondly, and even more fundamentally, the assessment of evidence is a function committed solely to the jury. Even if the doctor’s testimony was the sole evidence in the case of plaintiff’s intoxication, the jury, and not the Judge, should pass upon that testimony. A trial court cannot, in the name of discretion, remove an issue of fact from the jury’s consideration. By excluding the doctor’s testimony, the court invaded the province of the jury and this error, alone, requires a new trial.

The court also improperly excluded the documentary evidence that supported defendant’s claim of intoxication. The court found that the city had not established a chain of custody. The sole missing link in the chain was that of the medical officer’s driver. The medical officer did testify as to the manner in which he drew the sample and a qualified chemist employed by the well-established private laboratory explained the procedure he followed in conducting the analysis.

The test report, if duly authenticated, was admissible as a record prepared in the ordinary course of the laboratory’s business. (CPLR 4518, subd [a]; People v Porter, 46 AD2d 307.) Of course, a proper foundation must be established before the test results are admissible. Thus, care must be taken to trace the custody of the sample in the chance that someone may have tampered with it. (See People v Malone, 14 NY2d 8.) However, even in criminal cases, the rule is not inflexible. In People v Porter (supra), Judge Cooke, then writing for the Third Department, noted that "where the circumstances provide reasonable assurances of identity and unchanged condition and it would be impossible or an unreasonable requirement to produce each physical custodian as a witness, there has been a relaxation of the rule”. (46 AD2d, at p 311; see People v Connelly, 35 NY2d 171, 174-175.) In this case, there is no question that the sample taken by a department medical officer was the same as the sample tested by the chemist. There is also no indication that the sample was tampered with during the period it was in the driver’s custody. Nor does the plaintiff so claim. In my view, the identity of the sample was sufficiently assured to permit the test results to be introduced into evidence. (See People v Turcsik, 43 AD2d 777, app dsmd 34 NY2d 985.) It would be absurd to require that the driver be produced in the absence of any indication or even claim of tampering.

Although not made a predicate of his ruling, the Trial Judge was also concerned that the lapse of time between when the sample was taken and when it was analyzed might affect the reliability of the analysis. However, the undisputed medical testimony was that the lapse of time could only work in the favor of the plaintiff. That is, during the weekend there was the chance that some of the alcohol in the sample may have evaporated, therefore causing a lower reading of alcoholic content. On the other hand, there was no possibility that the lapse of time would increase the percentage of alcohol in the sample of plaintiffs blood. Interestingly, as it was, the analysis revealed the presence of .09% alcohol in plaintiffs blood, a level just below the amount that would legally preclude him from driving an automobile (.10%). (See Motor Vehicle and Traffic Law, § 1192, subd 2.) It is apparent, then, that the court’s arbitrary decision to exclude the substantial evidence of intoxication proffered by the city cut the heart from the city’s defense. The city is entitled to a new trial for that reason alone.

The court also committed two further errors in its charge to the jury. These errors, in addition to the exclusion of the intoxication evidence, illustrate the manner in which the court removed from the jury’s consideration the major issues presented by the city. The court instructed the jury that, because the fire alarm had sounded, plaintiff was confronted with an emergency situation. Thus, the jury was authorized to find, without more, that the plaintiff was not contributorily negligent, but was "guilty merely of an erroneous judgment, rendered hastily in an emergency”. (Raolaslovic v New York Cent. R. R. Co., 245 NY 91, 101.) The mere sounding of a fire alarm does not create an emergency situation in a fire station. The alarm is sounded for the sole purpose of inducing the firemen to act expeditiously. It does not authorize them to act without due caution. All firemen are trained, as was the plaintiff, to act calmly and dispassionately in true emergency situations. Their services would be of little value to the community they serve if, at the first ringing of an alarm, firemen chose to cast their own sense of good judgment to the wind. Such thoughtlessness may not only cause injury to the fireman involved, but harm members of the public who place great reliance in his professional judgment. The plaintiff was not at the scene of or involved in an actual emergency. For this reason I believe that the court erred in instructing the jury that plaintiff was acting in an emergency situation.

As a corollary to its charge on emergencies, the court instructed the jury that, if the plaintiff was acting in an emergency (as the court stated he was), plaintiff was entitled to make use of the sliding pole. The departmental regulation that the court cited for this proposition is, in fact, to the contrary. The regulation provides that sliding poles are not to be used "except in connection with response to alarms.” (Rules and Regulations of the Uniformed Force of the Fire Department of the City of New York, § 19.3.9.) This rule does not mandate that in all cases firemen must use sliding poles to respond to alarms; it merely forbids them from using the sliding poles unnecessarily. A critical issue was, thus, taken from the jury. The plaintiff had actually started for the stairs and had walked as far as the middle of the room before the alarm rang. The jury was told, in effect, that the plaintiff was required to walk all the way across an allegedly darkened room to use a sliding pole, even though he was already en route to the stairs. In my view, this, also, was error. The plaintiff’s offhand statement, relied upon by the majority, as to his own view of the rule, is no substitute for the very terms of the written rule itself. Moreover, even assuming that the plaintiff was required to use the pole, he was, in no event, licensed to run towards it in total darkness, as he admits he did.

In sum, the court, by its evidentiary rulings and its charge, removed the critical factual issues from the jury’s consideration. The court left the jury no choice but to find for the plaintiff, a result that the Judge evidently personally favored. The court usurped the proper function of the jury and conducted the trial in a manner fundamentally unfair to the defendant. In light of the exceedingly close liability question, I believe that a new trial is required. Accordingly, I dissent.

Cooke, J.

Judges Jones, Wachtler and Fuchsberg concur with Judge Gabrielli; Judge Jasen dissents and votes to reverse in a separate opinion in which Chief Judge Breitel concurs; Judge Cooke dissents and votes to reverse in another separate dissenting opinion.

Order affirmed, with costs. 
      
      . Plaintiff testified that his company was first due at the fire scene. However, another fireman testified that they were "second due”. Nonetheless, the testimony showed there to be no substantial difference between a "first due” or "second due” alarm and that both were considered to require urgent and immediate response.
     
      
      . Light from the lower floor was not visible from above because the pole hole was over 15 feet from the nearest downstairs light fixture and because the depth of the hole itself was 15 inches and did not permit light to pass through to the upstairs.
     
      
      . Additionally, we note evidence of a self-aborted attempt by two fire department officials to prefer charges that plaintiff was under the influence of alcohol in order to deter him from bringing this action, and their possible consequent investigation by city officials.
     
      
      . On the issue of intoxication, the trial court instructed the jury as follows: "I charge you that alcohol or the influence of alcohol is not in this case; as a matter of law I tell you this. There is no evidence for your consideration that is probative, that is valuable in The Court’s opinion for you to make any such deductions. On the contrary even from the defendant’s exhibits * * * and from the testimony of all the other witnesses that said he was not under the influence of alcohol, there clearly is nothing from which you could infer that he was. The medical records, the medical evidence that we have does not support it nor does the testimony.”
     
      
      . The relevant portions of the court’s charge are hereinafter set forth:
      "Now, the evidence without contradiction shows that the plaintiff was required to respond to signal 3762 by sliding the pole in question, that is pole 'A’ or any pole, but by pole. His job was to get to the fire apparatus and respond to the fire alarm by sliding the pole and only by sliding the pole. If that was an emergency he had no choice. He must take a pole because that is an alarm and either whether first due or second due it was an emergency condition ** * *.
      "Now, what is the duty of a fireman facing an emergency condition? A person faced with an emergency condition and who acts without opportunity for deliberation may not be charged with negligence if he acts as a reasonably prudent person would act with the same duties and under the same emergency circumstances.
      * * *
      "If you believe from the evidence that the plaintiff was responding to an alarm and that therefore there was an emergency then in that event the plaintiff had the right to use the sliding pole and more than that was compelled to use the sliding pole under Section 19.3.9 of the Rules and Regulations of the Uniformed Force of the Fire Department of the City of New York because that is the method by which you use in an emergency the pole.”
     