Opinion
February 22, 1968
Appeal from the Erie Trial Term.
Present — Bastow, J.P., Goldman, Del Vecchio, Witmer and Henry, JJ.
Judgment unanimously reversed on the law and facts and new trial granted, with costs to appellants to abide the event. Memorandum: This action to recover damages for the alleged negligence of defendant was brought by a husband, his wife, and their infant son. An automobile owned by the husband but operated by the wife in his absence with the five-year-old son as the sole passenger was struck by defendant's car. The verdict of the jury in favor of defendant was against the weight of the credible evidence. The Frushone vehicle was proceeding in a southerly direction on a public street. Defendant's car was driven out of a private driveway and the operator attempted to make a left turn to proceed in the same direction as the Frushone vehicle that was approaching from defendant's right. The failure of respondent to yield the right of way to Mrs. Frushone was a plain violation of section 1143 Veh. Traf. of the Vehicle and Traffic Law and the proximate cause of the accident. It is reasonably clear that the jury was confused and failed to understand the court's instructions. In view of the negligence of defendant it is impossible to reconcile the findings implicit in the verdict that the five-year-old infant plaintiff and his father (an absentee owner seeking recovery for damages to his automobile) were contributorily negligent.