• I cannot concur in the conclusion arrived at by the majority of' the court ini the case at bar. Before the court charged the jury the defendant’s counsel requested the court to charge “ that'if the jury believe from the evidence that the driver, Sweeney, and his helper,. McQuade, were unloading ice from the truck opposite the Italian Vitello’s basement at the time of the accident, outside of. any duty on their part to the defendant, they must find for the defendant.”' This request was refused.
It is conceded by the prevailing opinion that the defendant was-entitled to have this question submitted to the jury. But it is.urged that the refusal of the court to charge as contained in the record was- cured by the charge which was subsequently delivered, and that the jury were told that if the accident happened while these men were unloading the ice the defendant was not responsible, the court further saying: It is true that the reason given by the court was not the one insisted, upon by the defendant, but that was a. matter of no importance. The material fact was that if the jury found that the accident was caused by unloading the ice that was the end of the liability so far as the defendant was concerned, and if *183tlie defendant had the benefit of that instruction it had no right to complain with regard to the reasons which were given for it.”
It seems to me that there are two answers to this proposition: First, that the jury might have found the reason given not true in fact, the court basing its instruction to the jury upon the assumed fact that if the drivers were unloading the ice at the time of the accident the plaintiff could not recover, because there was no evidence of any negligent handling at that time. Tlie evidence in respect to the unloading of the ice showed that if the accident happened in connection with such unloading it was caused by the slipping of the ice from the tongs of one of the'workmen, and this, unexplained, showed negligence. The instruction to the jury, therefore, was upon an assumption as to the condition of the evidence which did not exist; and the jury may very well have come to the conclusion that if there was evidence of such negligence the direction did not apply. The reason given is only stated parenthetically and qualified the charge. The defendant was entitled to an absolute, unconditional instruction to the jury upon this point, and not one qualified by a reason which was not justified by the evidence.
And, furthermore, the learned court charged: “ Upon that testimony the jury is to say how the wagon was loaded at the time it went out from the defendant’s yard on the morning in question. That seems to be the principal question in the case, the- plaintiff’s claim being that it went out loaded in a defective way, and without any protection to prevent the top cakes from slipping; the defendant’s evidence being that it went out loaded in the proper way so as to prevent those cakes from slipping. That question is at the outset of the ease, a/nd upon your finding upon that depends your finding the ease.”
The jury were, therefore, instructed by the court that their verdict did not depend upon the question of unloading the ice, but depended entirely upon the question as to whether the load was properly put upon the wagon.
It is true that it is in a subsequent part of the charge that the instruction in regard to unloading is given. But the charge upon the question as to whether the loading was defective or not, was in no way qualified, and the jury under it were justified in finding the verdict for the plaintiff if they found that the wagon had been *184defectively loaded even though the accident had occurred while they were unloading the ice in front of the Italian’s store. It seems to me that by the failure in any way to qualify the previous parts of the charge, and by the giving of an erroneous reason for the subsequent instruction in regard to unloading, it is impossible to say that the jury were not entirely misled, or to determine which instruction the jury followed.
It has been too often held to need the citation of authorities that an instruction given in a subsequent part of the charge does not cure an error committed in a previous instruction. But it is not necessary to rest upon this rule because at the end of the charge the learned judge reiterates the proposition and says: “ So that the question comes down to.a conflict between these witnesses as to how that wagon went out loaded on that morning. If you believe that the wagon went out as testified to by McQuade and the driver, Sweeney, as they say they loaded it, with these top cakes of ice not protected by the wedge cakes at the back, so that in starting up the. Wagon-the ice was likely to slip off, then the plaintiff has made.out the allegations of the complaint, that the ice slipped off and fell from the wagon.”
The jury, therefore, went out with the instruction that the sole question upon which they were to pass was as to the loading of the wagon. These instructions were duly excepted to by the defendant. I fail to see that these exceptions can be avoided. The question was clearly presented to the court; the defendant’s request was denied, and to its denial an exception was taken, and the instruction was given not once, but twice, that the sole question was as to the loading of the wagon, and this was the last instruction given to the jury.
.The judgment'should be reversed.
Judgment-and order affirmed, with costs.