Opinion
October 30, 1961
In a negligence action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Nassau County, entered May 12, 1961, in favor of plaintiff, after a jury trial. Judgment reversed and a new trial granted, with costs to appellant to abide the event. Plaintiff, a business visitor on defendant's premises, was injured when, in the nighttime, he tripped and fell over a low-wire fence on the lawn. He had left the path from defendant's building to the street and had entered upon the lawn to retrieve his hat, which had blown off. The fence, composed of two crossed strands of wire, was inside the lawn area and about 10 feet from the edge of the path. The learned Trial Justice, after instructing the jury as to the difference between an invitee and a licensee and as to the distinction in the duty owed by defendant in each instance, charged in substance that the jury was to determine the question of defendant's negligence in accordance with its finding as to whether plaintiff was an invitee or licensee at the time and place of the accident. Thereafter, pursuant to requests to charge, the jury was instructed that plaintiff was at best a licensee to whom the only duty owing was to refrain from willful acts of negligence and to prevent the creation of a trap. We are unable to determine the rule of law which governed the determination by the jury, or the meaning ascribed by the jury to the conflicting portions of the instructions thus given. Under such circumstances, a new trial is required in the interest of justice (cf. Moore v. Crestwood Manor, 286 App. Div. 851; Molnar v. Slattery Contr. Co., 8 A.D.2d 95, 100). On the record presented, the questions of negligence and contributory negligence may not be determined as a matter of law (cf. Heffron v. New York Cent. Hudson Riv. R.R. Co., 223 N.Y. 473). Nolan, P.J., Beldock, Christ, Pette and Brennan, JJ., concur.