Opinion
February 28, 1939.
In an action to recover damages for the death of plaintiff's intestate through the alleged negligence of the defendant in the operation of his automobile, judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. The trial court erroneously refused to charge, upon plaintiff's request, that if her intestate was crossing at the crosswalk with the light and reached a point within twelve or fifteen feet of the east curb, where he was struck when the light turned to black, he had the right of way over defendant's automobile. The court was further in error in stating that, under the facts assumed in the request, he would leave the question of the right of way to the jury, that the rights were equal at the crossing, and that such a charge "would be entirely different from the defendant's story." (Code of Ordinances of the City of New York, chap. 24, art. 2, § 11; Ward v. Clark, 232 N.Y. 195; Metzger v. Cushman's Sons, Inc., 243 id. 118; Cherubino v. Meenan, 253 id. 462.) We do not agree with the respondent that the error was harmless. Lazansky, P.J., Hagarty, Carswell, Adel and Close, JJ., concur.
Accident happened on crosswalk at street intersection on April 15, 1936. Old Traffic Ordinance was then in force. Traffic Code has been since revised. — [REP.