Shupackv.Brooklyn and Queens Transit Corporation

Appellate Division of the Supreme Court of New York, Second DepartmentJan 27, 1947
271 App. Div. 937 (N.Y. App. Div. 1947)

January 27, 1947.

Action by infant plaintiff to recover damages for personal injuries, and by his mother for medical expenses. Judgment reversed on the law and a new trial granted, with costs to appellants to abide the event. According to his testimony, the infant plaintiff, a boy about nine years old, was proceeding across New Utrecht Avenue at 42d Street, in the borough of Brooklyn, on the crosswalk, when he was struck by a trolley car of the defendant coming diagonally from his right. At the time he started to cross the avenue, according to his testimony, said plaintiff had the traffic lights in his favor and the trolley car was stopped northerly of 42nd Street waiting for the lights to change. He had proceeded to the center of the avenue, on the southerly crosswalk, when he discovered the trolley car coming toward him, about six feet away. At the conclusion of plaintiffs' case, the complaint was dismissed by the trial court upon the ground that the infant plaintiff was guilty of contributory negligence as a matter of law. That plaintiff, however, on his testimony, had the right of way and upon this record the question of his contributory negligence was one of fact for the jury. Lewis, P.J., Hagarty and Nolan, JJ., concur; Adel, J., concurs in result; Aldrich, J., deceased.