Opinion
December 14, 1942.
In an action to recover damages for personal injuries sustained by plaintiff when his motorcycle collided with defendants' automobile, defendants appeal from a judgment in favor of the plaintiff entered on the verdict of a jury. Judgment reversed on the law and the facts and a new trial granted, costs to abide the event, upon the grounds that the verdict in favor of the plaintiff is against the weight of the credible evidence on the issue of contributory negligence; that a new trial is in order in the interest of justice; and that the learned trial justice erred in his charge to the jury regarding the grounds on which they could base a finding of negligence on the part of the defendants. The complaint and the bill of particulars charged negligence of the defendants, in effect, in stopping the defendant municipality's police car without warning. (Vehicle and Traffic Law, § 83, subd. 1; Cons. Laws, ch. 71.) The charge as ultimately made to the jury by the learned trial justice erroneously permitted recovery upon a cause of action not pleaded — slowing down without warning. ( Walrath v. Hanover Fire Ins. Co., 216 N.Y. 220, 225; cf. Voccia v. Pleasure Boat Co., 239 App. Div. 165; affd., without opinion, 264 N.Y. 656.) Lazansky, P.J., Hagarty, Johnston, Adel and Taylor, JJ., concur.