Wallach, J. (concurring). As a preliminary matter, one of the difficulties which appeared to be presented by this appeal is that the trial court seemingly charged the jury in abstract terms on two separate theories of recovery: general negligence as well as the theory of res ipsa loquitur; and since the jury delivered a general verdict, it appeared somewhat dubious as to which theory of recovery the jury accepted, or, indeed, whether the jurors saw fit to embrace both.* Since plaintiffs proof was insufficient as a matter of law to support general negligence, and were we to take a final view of the case as *100irreparably cast by the court’s charge in that uncertain posture, our proper course, following reversal of the trial court’s dismissal, would necessarily be to order a new trial (Davis v Caldwell, 54 NY2d 176).
A closer study of the record, however, permits us to sustain the verdict, because before taking up the res ipsa theory in its charge, the trial court effectively withdrew from the jury’s consideration the only negligence theory actually litigated between the parties, with the following instruction: "Now, Defendant claims he acted reasonably, and that the chain was thrown, and if it was thrown, I’ll tell you, as a matter of law, the Transit Authority would not be negligent. Their negligence would be if it somehow fell from the train, and I’ll tell you about that in a moment.” (Emphasis added.)
We are satisfied that this direction eliminated the sole general negligence claim advanced by plaintiff, namely, that defendant failed to employ due care to prevent a mischief-minded passenger from prying the safety chain loose and hurling it from the train.
The trial record satisfies me that the only issue left for determination by the jury was whether the plaintiff’s evidence established a recovery upon the theory of res ipsa. In Ebanks v New York City Tr. Auth. (70 NY2d 621, 623), the Court of Appeals succinctly stated the elements of res ipsa loquitur: '(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ ” (Emphasis added.)
It is true that the court, in its charge, referred to negligence in the following familiar language from the Pattern Jury Instructions (see, PJI 2:10): "Negligence is a failure to use that degree of care which a reasonably prudent person would have used under the same circumstances. It may arise for acting in a way which a reasonably prudent person would not have acted under the same circumstances, or on the other hand, from failing to act in a way in which a reasonably prudent person would have acted under the same circumstances.”
However, when the structure of the charge is considered as a whole, it becomes apparent that this instruction did not articulate a separate issue, but simply supplied a working definition of the concept of negligence to be applied by the jury in evaluating the res ipsa claim. We can be confident of *101that conclusion, because the court’s reference to general negligence was unaccompanied by any elaboration of, or linkage to, any factual contention by either party.
Thus we reach the question, decided adversely to plaintiff by the trial court as a matter of law, of whether this verdict can be permitted to stand on the theory of res ipsa loquitur. As to this question, the only one decided by the jury, I agree in the reversal of the court’s dismissal of plaintiff’s case and the reinstatement of the verdict in plaintiff’s favor.
I have written separately here only because I believe the majority opinion fails to come to grips with the most serious problem in the case, apparently comforted by a purported "concession” in defendant’s brief on appeal that res ipsa was plaintiff’s sole theory of recovery. In reviewing the viability of a verdict, the question is not what a party concedes on appeal, but rather what instructions the jury actually received from the Trial Judge. Ironically here, it is the plaintiff who strongly urges, in her brief, that the jury verdict can properly rest both on res ipsa and negligence. Were we to accept that contention at face value, we would be obliged to reverse and remand. The point is that the vagaries of appellate argument, often hypothetical in content, do not serve to alter what actually transpired at trial as reflected by the record. Only from that record am I able to conclude that the case was actually submitted to the jury on the sole theory of res ipsa loquitur.
Candor compels me to concede that I am affected by the lengthy history of this lawsuit, arising from the skull fracture sustained by this blameless pedestrian, now deceased from causes unrelated to the action, for which the jury has made a relatively modest $70,000 award. The accident itself is a decade old, and Mr. Nesbit has not lived to see either the fruition or frustration of his recourse to the judicial system. (The first trial of this case resulted in a verdict for defendant; that verdict was vacated by Justice Callahan, a ruling we affirmed on our remand for this trial in May 1987 [130 AD2d 986].) To condemn this case to yet a third trial would be to place it in contention for the Jarndyce v Jarndyce Bleak House award in the negligence field.
Murphy, P. J., Carro and Kupferman, JJ., concur with Asch, J.; Wallach, J., concurs in a separate opinion.
Order, Supreme Court, Bronx County, entered on or about October 25, 1989, reversed, on the law and the facts, without costs or disbursements, and the verdict for plaintiff reinstated.
In quoting a portion of this sentence, my colleagues appear to apprehend it as a statement of my position in this case. On the contrary, it formulates what I regard (and they do not) as the seminal problem in the record which, unless satisfactorily resolved, would require a new trial. My ultimate conclusion, after the analysis, infra, is the same as theirs.