Morrissey v. Huff

Judgment reversed upon the law, and new trial granted, costs to abide the event. The court charged that “ the defendants having pleaded without alleging any contributory negligence upon the part of John Morrisey, his contributory negligence is not involved; it is not at issue here in this case.” This very definite instruction that they must not consider the question of contributory negligence was emphasized by the court in refusing to permit defendants to amend their pleading so as to bring the question of contributory negligence into the ease. The last word to the jury was, therefore, that the question of decedent’s contributory negligence was not to be considered. These errors require a reversal. Kelly, P. J., Manning, Young, Kapper and Lazansky, JJ., concur.