Opinion
November 16, 1970
In a negligence action to recover damages for personal injuries, defendants appeal from a judgment of the Supreme Court, Queens County, entered November 19, 1969, in plaintiff's favor upon a jury verdict. Judgment reversed, on the law, and new trial granted, with costs to abide the event. In our opinion, in the light of the evidence adduced at the trial, the Trial Justice erred in refusing to charge the jury concerning the applicability of section 1141 Veh. Traf. of the Vehicle and Traffic Law to the issues herein and concerning whether defendant Rothkrug was confronted with an emergency not of his own making. The evidence presented close questions of fact for the jury's determination as to defendant's negligence and plaintiff's freedom from contributory negligence. The above-requested charges were material and relevant to those issues (cf. Moore v. Washburn, 14 A.D.2d 474; Hemingway Bros. Interstate Trucking Co. v. McLeod, 22 A.D.2d 299; Gabor v. Levitt, 34 A.D.2d 645; Joyce v. Stockwell, 32 A.D.2d 698; Stevens v. Clark, 2 A.D.2d 791; Rocken-Styre v. Huck, 32 A.D.2d 697, 698). Christ, P.J., Martuscello, Latham, Kleinfeld and Brennan, JJ., concur.