Opinion
November 6, 1961
In a negligence action to recover damages for personal injuries sustained when the plaintiff, while riding a bicycle, collided with an automobile operated by defendant Moschino and owned by defendant Zoldek, the plaintiff appeals from a judgment of the Supreme Court, Kings County, rendered December 5, 1958, after a jury trial, in favor of the defendants. Judgment reversed on the law and new trial granted, with costs to appellant to abide the event. The findings of fact implicit in the jury's verdict are affirmed. The accident occurred at the intersection of Stanhope Street and Bushwick Avenue in Brooklyn, where traffic was controlled by traffic lights. Stanhope Street ended at Bushwick Avenue, and there was a traffic light on the westerly side of Bushwick Avenue at Stanhope Street. The plaintiff was riding his bicycle in a westerly direction on Stanhope Street, and he collided with the defendant's automobile which was going north on Bushwick Avenue. The principal factual issue in dispute during the trial was whether the traffic lights were red or green at the time of the accident. There was evidence from which the jury could have found that all the traffic lights controlling traffic on Stanhope Street and on Bushwick Avenue at or near the intersection would be red for some seconds. The court committed error in charging: (a) that the verdict would have to be based on a finding of fact as to who had the red or green traffic light at the time the accident occurred; and (b) that the verdict must be for the defendants if the jury found that the plaintiff's bicycle emerged from Stanhope Street against a red light (see, e.g., Lee v. City Brewing Corp., 279 N.Y. 380, 386; Major v. Waverly Ogden, 7 N.Y.2d 332, 336). Moreover, the portions of the charge relating to the traffic lights and to violations of traffic regulations were confusing. Beldock, Acting P.J., Ughetta, Kleinfeld, Pette and Brennan, JJ., concur.