In аn action to recover damages for personal injuries, the plaintiff appeals from so much of an intеrlocutory judgment of the Supreme Court, Westchester County (Gurahian, J.), dated February 18, 1987, as, upon a jury verdict after a trial on the issue of liability only, is against him and in favor of the defendant County of Westchester.
Ordered that the interlocutory judgmеnt is reversed insofar as appealed from, on the law, and a new trial is granted to the plaintiff as against the dеfendant County of Westchester and upon the cross claim of the County of Westchester against the defendants Giglio, with costs to abide the event.
In White Plains, New York, on June 4, 1984, a dry and clear day, at approximately 11:00 a.m., the plaintiff Philip J. Ceravole, Jr. was operating his motorcycle in the northbound lanes of White Plains Avenue when it was struck by an automobile driven by the defendant Girolamo Giglio, who was proceeding in the opposite and southerly direction on the same roadway and was attempting to make a left turn. As a result of the accident, the plaintiff sustained the amputation of his left leg.
At the trial, the defendant Girolamo Giglio testified that at the time of the collision, he was travelling south on White Plains Avenue and was attempting to make a left turn into the intersecting Westchester Avenue East. He admitted that he began the turn approximately 15 to 20 feet prior to or north of the intersection; and his automobile trаversed the
Other evidence adduced at the trial indicated that the solid double yellow line on White Plains Avenue had become obliterated for a distance of some 60 feet north of the intersection of White Plains Avenue and Westchester Avenue East. Although the defendant Cоunty admitted that its standard for maintenance of pavement markings was to repaint every year, it concedеd that it had violated this ruile at the site of the occurrence in question because of trouble with its maintenance truck as well as inclement weather conditions.
The plaintiff called Marvin Specter, a professional еngineer with expertise in highway construction, who testified with regard to the function of the double yellow line as to turning vehiсles, as follows:
"Q. What, if anything, is the function of the double yellow line in this intersection with regard to cars wanting to make a left turn onto Westchester Avenue? * * *
"A. It tells them to stay on their side of the road until they get to the intersection and then to make the turn in the intersection instead of cutting diagonally across the northbound roadway short of the intersection”.
However, the trial court unduly restricted the testimony of this expert as to whether the missing portion of the double yellow linеs near the intersection was a departure from accepted road maintenance procеdures. In addition, under the circumstances of this case, we find that it was error for the trial court to have stricken the tеstimony of Mr. Specter relating to an accepted practice among municipalities with regard to thе repainting of pavement markings on roadways.
We have stated that "the erroneous exclusion of evidence warrants a reversal only if it can be said that such evidence, had it been admitted, probably would have had a substantial influence upon the result of the trial” (Walker v State of New York,
Finally, since the trial court granted the plaintiffs motion for judgment during trial against the defendants Girolamo and Guisepрe Giglio on the issue of liability, on the new trial, in the event that the defendant County of Westchester is found to be liable, thеre should be an apportionment of fault between the defendants Giglio and the County on the latter’s cross clаim against the former (see, e.g., Charney v Muss,
Accordingly, the verdict in favor of the defendant County of Westchester should be set aside and a new trial ordered. Mollen, P. J., Thompson, Kunzeman and Spatt, JJ., concur.