65 A.D.2d 945 | N.Y. App. Div. | 1978
—Judgment unanimously reversed, on the law and facts, with costs, and a new trial granted. Memorandum: In this negligence action the plaintiff was 12 years old at the time of the accident. With her bicycle she was crossing Sheridan Drive in the City of Buffalo, a six-lane highway, three lanes in each direction divided by a mall, and had reached the center mall. There is evidence that she then looked to her right, saw defendant’s automobile approaching a short distance away and she proceeded to cross, during which she was in collision with defendant’s automobile in the middle of the west bound lanes. Defendant testified that she did not see the plaintiff before the collision in this wide open intersection. From the jury’s verdict of no cause for action the plaintiffs appeal, asserting several grounds of error, particularly in the court’s charge. Although the court charged several fundamental rules respecting negligence, contributory negligence, statutory violation, proximate cause and the effect of infancy, it failed to zero in on the relationship between plaintiff’s infancy and the statutory provisions, and it concluded its charge in this respect with the unhelpful statement that "what we are trying to say here is that where you’re dealing with an infant the standard is a little different than it would be for an adult.” The court charged that if plaintiff violated subdivision (a) of section 1142 of the Vehicle and Traffic Law (providing that a driver having stopped at a stop sign at an intersection, shall yield the right of way to any vehicle which has entered it from another highway), it constituted contributory negligence and would bar recovery. It did not charge, as it should, the full substance of Pattern Jury Instructions charge 2:49 (PJI 2:49) which reads as follows: "Although the violation of a statute by an adult
