
    Beckie Lusthaus, as Administratrix, etc., of Samuel Lusthaus, Deceased, Appellant, v. United States Trucking Corporation, Respondent.
    First Department,
    March 18, 1932.
    
      Louis II. Schleider of counsel [Stern & Stern, attorneys], for the appellant.
    
      Walter G. Evans of counsel [Evans, Hunt cfc Bees, attorneys], for the respondent,
   Sherman, J.

In this action to recover damages for the death of plaintiff’s husband caused by defendant’s alleged negligence, the jury found for the defendant.

While crossing Avenue C at Tenth street in the city of New York the decedent was knocked down by defendant’s truck and died as the result of the accident. The evidence presented a jury question, which was properly submitted by the learned trial court.

With respect to the burden of proof, however, the court having charged that if the fair preponderance of credible proof was in favor of plaintiff’s contention that the defendant’s servant was guilty of negligence, the plaintiff was entitled to a verdict, added: If there is any doubt in your minds as to the happening of the accident or the conduct of the defendant’s chauffeur, that doubt must be resolved in favor of the defendant, and your verdict must be in favor of the defendant.”

Plaintiff’s counsel excepted thereto and asked the court to charge that the plaintiff must merely prove her case by a fair preponderance of the evidence and not beyond a doubt, and plaintiff excepted to the failure of the court so to charge.

Even if the plaintiff proved her case by the fair weight of the evidence and yet left a doubt (however slight) in the minds of the jury as to the happening of the accident or the conduct of defendant’s chauffeur, the jury were, under this instruction, required to find for the defendant.

In a closely contested case of this character we cannot hold that this error was not harmful to the plaintiff.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Finch, P. J., Merrell, McAvoy and Martin, JJ., concur.

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