Guiseppe Gazzola, as Administrator, etc., of Pietro Gazzola, Deceased, Appellant, v. Thomas J. O'Brien, Respondent

Guiseppe Gazzola, as Administrator, etc., of Pietro Gazzola, Deceased, Appellant, v. Thomas J. O’Brien, Respondent. First Department, November 5, 1915. Evidence — action to recover damages for death — burden of proof of contributory negligence — effect of section 841b of Code of Civil Procedure. Section 841b of the Code of Civil Procedure, providing that on the trial of any action to recover damages for causing death, the contributory negligence of the person killed shall be a defense to be pleaded and proven by the defendant, applies to an action to recover damages for death, although the accident causing death and the commencement of the action antedated its enactment. Hence, in an action to recover for death caused by being run over and • killed by an automobile, commenced prior to the enactment of said section, but tried after the same took effect, it was error for the court to charge that the plaintiff was required to show by a fair preponderance of the evidence that the deceased was free from negligence. Appeal by the plaintiff, Guiseppe Gazzola, as administrator, from a judgment of the Supreme Court in favor of the' defendant, entered in the office of the clerk of the county of New York on the 20th day of June, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of October, 1914, denying plaintiff’s motion for a new trial made upon the minutes. Sydney A. Syme, for the appellant. Clinton T. Roe of counsel [George F. Hickey with him on the brief], Roe & Hayes, attorneys, for the respondent. [MAJORITY — Clarke, J.:] Clarke, J.: This is an action to recover ‘for the death of plaintiff’s intestate caused by being run over and killed by an automobile owned and driven by the defendant. The accident occurred on August 7, 1912, and the action was commenced on September 5, 1912. The court charged the jury that the plaintiff was required to show by a faff preponderence of the evidence that the deceased was free from negligence, to which an exception was taken. The accident occurred and the case was commenced prior to the enactment of section 841-b of the Code of Civil Procedure, added by chapter 228 of the Laws of 1913, to take effect September first, providing that on the trial of any action to recover damages for causing death the contributory negligence of the person killed shall be a defense to be pleaded and proven by the defendant. The case was tried in June, 1914. In Sackheim v. Pigueron (215 N. Y. 62) the Court of Appeals has decided that section 841-b of the Code of Civil Procedure operated only as a change in procedure and the mode of attaining or defending rights, and should be construed to apply to actions pending when the same took effect. It follows, therefore, that the instruction of the court, duly excepted to, that the burden of proving decedent’s freedom from contributory negligence rested upon the plaintiff, was error, and such substantial error that we cannot sustain this judgment. The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event. Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event.