Opinion
July 2, 1940.
There was no evidence of contributory negligence on behalf of the infant plaintiff. Judgment and order reversed on the facts and a new trial granted, with costs to appellant to abide the event. Hill, P.J., Heffernan, Schenck and Foster, JJ., concur; Crapser, J., dissents and votes to affirm, in a memorandum. Crapser, J.: The plaintiff, a few days past sixteen years old, who six months before had been in an automobile accident in which he received injuries and in connection with which he brought an action which was settled for $1,000 through the same attorney that represents him in this case, was riding in the automobile of the defendant. There were three of them in the seat. The car in which the plaintiff was riding was proceeding at a rapid rate of speed on its left-hand side of the road as it approached a curve which was on a down grade. The plaintiff saw the on-coming car 500 feet away. The defendant put on his brakes in his car and the back end of his car collided with the front end of the on-coming car which was stopped on the highway, concededly on its right-hand side. There was no question of the defendant's negligence. The question was of the contributory negligence of the plaintiff. The matter was submitted to the jury upon the story of the plaintiff and his witnesses and the jury returned with a verdict of no cause of action. It was a question for the jury. The matter was submitted by the court fairly without any exceptions to his charge and the judgment of no cause of action is not against the weight of evidence and it should be affirmed.