Opinion
November 16, 1955.
Appeal from Supreme Court, Albany County.
Plaintiff engaged one of defendant's taxis to transport her from Albany to a restaurant in Rensselaer on March 8, 1950. Defendant's operator stopped his vehicle in front of the restaurant, on its left hand side of the street, to discharge plaintiff. Plaintiff testified that the left side of the taxi was about three feet out from the curb, that there were mounds of snow and ice about a foot high between the taxi and the curb, and that as she alighted she slipped and fell and sustained personal injuries. Plaintiff and witnesses called by her testified that a drizzling rain was falling at the time, that there were piles of snow and ice all along the curb line and that snow and ice covered the street. The Trial Judge charged that it was the duty of the defendant's operator "to use due care in the circumstances to provide a reasonably safe place for the plaintiff to alight". He also charged that the Vehicle and Traffic Law provides that, except in circumstances not here material, no vehicle shall be stopped with its left side to the curb, that a violation of the statute constitutes negligence but before an operator of a vehicle may be charged with negligence for a violation of the statute, the jury must find that the violation proximately contributed to the accident. Defendant's counsel duly excepted to the portion of the charge concerning the Vehicle and Traffic Law and relies upon the exception as one ground for reversal. In our opinion, it was error to charge the section since there is nothing in the record to indicate that plaintiff's injury was in any manner the result of disobedience of the statute and, whether or not it was, should not have been submitted to the jury. Any finding implicit in the jury's verdict that defendant's operator, under the circumstances, did not use reasonable care in selecting a place for plaintiff to alight seems to us to be contrary to the weight of the evidence. The record does not disclose that any safer place could have been found with the conditions of snow and ice prevailing on the street. Judgment and order reversed, on the law and facts, and a new trial ordered, with costs to the appellant to abide the event. Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ., concur.