Santos Martinez, Respondent, v. Adelphi Hospital, Appellant, 21 A.D.2d 675

In an action to recover damages for personal injury alleged to have been sustained by plaintiff as a result of lumbar punctures performed at defendant hospital, the hospital appeals from an order of the Supreme Court, Kings County, dated January 18, 1963, which granted plaintiff’s motion to set aside a jury’s verdict in favor of the defendant and which directed a new trial. Order affirmed, without costs.

While we affirm the order, we do not do so for the reason stated by the learned Trial Justice, namely: that the evidence preponderated so greatly on plaintiff’s behalf that no conclusion other than one in plaintiff’s favor could be reached. We affirm, rather, on the sole ground that, even though no exception was noted, it was improper, in the course of the charge, to instruct the jury that: “If you as members of the jury are in doubt as to the exact way in which plaintiff contracted this disease, of course you must find for the defendant” (cf. Bunce v. City of New York, 261 App. Div. 838; Goodman v.

Gilligan, 280 App. Div. 767). After the jury had been deliberating for more than two hours, they returned to the courtroom for further instruction with respect to the following question: “Tour Honor, did you in your charge to the jury state that if there is doubt in any juror’s mind as to malpractice on the part of the Adelphi Hospital, their vote must be in favor of the defendant?”. To this the court responded by reading so much of the original erroneous charge as is quoted above. Again, no exception was taken.

The jurors, after deliberating for more than six hours, finally found for the defendant by a 10 to 2 verdict. Where, as here, the issue of liability is a close one, the plaintiff will be afforded a new trial in the interests of justice on the sole ground of erroneous instructions to the jury, even though no exception was taken (Juskow v. Tow. Ulanow Swintego Jana Chrziciela, 4 A D 2d 1003; Zeffiro v. Porfido, 265 App. Div. 185). Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.