Opinion
November 16, 1961
Appeal by plaintiff from a judgment entered upon a jury verdict in favor of defendant in an automobile negligence action and the order denying her motion to set it aside on the grounds specified in section 549 of the Civil Practice Act. On August 17, 1959 plaintiff was injured while riding in the front seat of an automobile jointly owned by her and her husband and operated by the latter. The point of impact was the rear of their vehicle. The defendant pleaded guilty to violating section 1129 Veh. Traf. of the Vehicle and Traffic Law which deals with the following another vehicle more closely than is reasonably prudent in the circumstances. The trial court charged the jury that any negligence on the part of her husband, as the operator of the car, was imputable to plaintiff. Clearly this was an improper charge bearing on the vital issue of plaintiff's contributory negligence. ( Jenks v. Veeder Constr. Co., 177 Misc. 240, mod. 264 App. Div. 979, affd. 290 N.Y. 810.) Although no exception was taken by plaintiff at the trial, we think that in the interest of justice the verdict should not be permitted to stand. ( Peerless Cas. Co. v. Bordi, 6 A.D.2d 21 and cases cited therein.) In the light of this conclusion, we do not reach the other questions raised by appellant. Judgment and order appealed from reversed, on the law and the fact, and a new trial granted, with costs to appellant to abide the event. Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.