Opinion
November 18, 1936.
This is an appeal from a judgment of nonsuit dismissing the plaintiff's complaint at the close of the plaintiff's testimony. Plaintiff was riding on the side of an automobile standing on the running board and hanging onto the window. Defendant backed his automobile out of a driveway into the side of the car on which the plaintiff was riding and injured the plaintiff. The occupants of the car on which plaintiff was riding were uninjured and there was room for the plaintiff to have ridden in the car instead of hanging on the outside. The trial court held that the plaintiff was guilty of contributory negligence as a matter of law in that he violated subdivision 3 of section 88 Veh. Traf. of the Vehicle and Traffic Law and that such violation was a contributing cause of the harm which resulted to him. Judgment reversed, on the law, and new trial granted, with costs to the appellant to abide the event, on the authority of Morris v. Town of Stafford ( 266 N.Y. 597). Hill, P.J., Rhodes, Bliss and Heffernan, JJ., concur; Crapser, J., dissents and votes to affirm.,