Opinion
May 6, 1965
Appeal by the plaintiff from a judgment entered upon a jury verdict of no cause of action and from an order denying his motion to set aside the verdict and for a new trial. The plaintiff contends that it was error to refuse to charge "that Mr. Frank [the defendant] overtook and passed another vehicle which was turning to the left, and passed upon the right, and that if they find that he undertook that passing under conditions which did not permit such movement in safety, that, in and of itself, is negligence". The charge requested, which contained no statement of the necessity of a showing by the plaintiff, in pursuance of his burden of proof, of the existence of a chain of causation would have been erroneously unfavorable to the defendant. While the statutory violation, if it occurred, was negligence, it was the further task of the jury to say whether the fact of violation conjoined as a fact of causation ( Miller v. Hine, 281 Ap. Div. 387). The case was submitted to the jury in a charge to which no exception was taken except as to evidentiary matter which the court immediately and adequately set right. No such prejudicial error is demonstrated as to lead us to disregard the usual requirement that an exception be taken to an erroneous charge. In this intersection case the issues of negligence and contributory negligence were purely factual and the jury was warranted in resolving them as it did. Judgment and order affirmed, without costs. Gibson, P.J., Reynolds, Taylor and Aulisi, JJ., concur.