Opinion
March 9, 1942.
In an action to recover damages for personal injuries, plaintiff appeals from a judgment dismissing the complaint on the merits, after a verdict in favor of the defendant. Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. The appellant's intestate, who died after the judgment was entered, was crossing Avenue K, in the borough of Brooklyn, walking in a southerly direction. He was struck by the automobile of the defendant, traveling in a westerly direction. There was a sharp conflict as to whether the decedent was struck while he was on the crosswalk and about the center of Avenue K, or whether he walked from between parked cars some ten or fifteen feet west of the intersection. The tenor of the court's charge was that it was the duty of the decedent not only to look before he started to cross but to keep on the lookout while crossing. This placed too heavy a burden upon the plaintiff. ( Knapp v. Barrett, 216 N.Y. 226.) The court also erred in the emphasis he placed upon the testimony of the police officer called by the defendant, and in charging the jury that if they accepted the police officer's testimony they must find a verdict for the defendant. We are also of the opinion that the court participated to an unwarranted extent in the cross-examination of the plaintiff's witnesses, and that a new trial should be had in the interests of justice. Hagarty, Carswell, Johnston, Taylor and Close, JJ., concur.