Opinion
April 5, 1985
Appeal from the Supreme Court, Erie County, Broughton, J.
Present — Hancock, Jr., J.P., Callahan, Denman, Green and O'Donnell, JJ.
Judgments and order unanimously reversed, on the law, plaintiff's motion granted and a new trial granted as against defendants Nabozny and Interstate Motor Freight System, with costs to abide the event. Memorandum: In an appeal from judgments dismissing his complaint after a jury verdict of no cause of action in a negligence case against defendants Nabozny and Interstate Motor Freight System, plaintiff contends that the court's failure to charge that violations of the Vehicle and Traffic Law constituted "negligence in itself" was reversible error. We agree that this was error requiring a new trial. Here, the alleged negligence was that the lights of the tractor trailer operated by defendant driver were not operable nor turned on as required by Vehicle and Traffic Law § 376 (1) (a) and that he stopped his vehicle on the highway without putting out flares or other emergency devices in contravention of Vehicle and Traffic Law § 375 (17), (19). It is established law that a defendant's unexcused violation of a statute constitutes negligence per se and that it is for the jury to determine whether the violation was the proximate cause of the accident ( see, Martin v. Herzog, 228 N.Y. 164; Aranzullo v. Seidell, 96 A.D.2d 1048). The court should have so charged ( see, PJI 2:25, 2:26 [2d ed 1974]). We cannot say that the error was harmless ( see, Cummings v Blakeslee, 57 A.D.2d 1048, 1049).