Kepner v. Barry

Order unanimously modified on the law and facts so as to direct a new trial of all issues and as so modified affirmed, without costs of this appeal to either party. Memorandum: The inadequacy of the verdicts may have been the result of a compromise by members of the jury because of doubt as to plaintiff’s right to recover. (See 4 Weinstein-Korn-Miller, N. Y. Prac., par. 4404.34.) Furthermore, the trial court failed to adequately charge the jury as to contributory negligence. (See 1 New York Pattern of Jury Instructions, Civil, pp. 176-177.) (Appeal from order of Erie Special Term granting a new trial only as to the amount of damages.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Yecchio, JJ.