Opinion
July, 1929.
Judgment reversed upon the law, and a new trial granted, costs to abide the event. In our opinion, the granting of a nonsuit was erroneous. The case of Martin v. Herzog ( 228 N.Y. 164) is distinguishable from the case at bar. The only question determined in that case was that a charge that the absence of light upon a vehicle was only some evidence of negligence and a refusal to charge that such absence of lights was " prima facie evidence of negligence" was error. The Court of Appeals did not determine that the absence of lights, in violation of the statute, was under all circumstances negligence as a matter of law. The question as to whether the absence of light on plaintiff's bicycle was a proximate cause of the injury, in view of the circumstances disclosed by the evidence, was a question for the jury. Lazansky, P.J., Young, Hagarty, Seeger and Carswell, JJ., concur.
Highway Law, § 329-a, added by Laws of 1914, chap. 32, as amd. by Laws of 1915, chap. 367; since amd. by Laws of 1918, chap. 258, and Laws of 1923, chap. 427. See General Highway Traffic Law, § 19, subd. 4. Now Vehicle and Traffic Law, § 89, subd. 10. See Laws of 1929, chap. 54, §§ 95, 99, 105. — [REP.