It is not disputed that erroneous instructions were given in the first instance to the jury by the court below. All that is claimed, is that by some subsequent remarks this error was remedied. The language complained of is as follows: “If however.this accident resulted through no fault of the plaintiff, if you believe that when he started to drive across the tracks in front of that approaching car he was justified in assuming that it was safe to do so, then it is up to the defendant to explain why the accident happened.” Exception to these remarks was taken and plaintiff’s counsel stated that he consented to a withdrawal by the court of the statement that it is for the defendant to explain anything. The court, however, refused.in positive terms to withdraw any of its charge, the only language which can at all be regarded as even appearing like a modification is as follows: Plaintiff’s counsel: “If any statement was made that the defendant should explain the jury should disregard it.” The court: “Yes.” The attention of the jury was not clearly called to the fundamental error to the rectification of which plaintiff’s counsel was endeavoring to guide the mind of the court, and the rulings were at best conflicting and confusing. Dambmann v. Metropolitan St. R. Co., 180 N. Y. 384.
Gildersleeve and Goff, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.