Caronia v. Muller

250 A.D. 722, 293 N.Y.S. 363, 1937 N.Y. App. Div. LEXIS 8616

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 1937
• Status: Published

Opinion

Action by infant plaintiff, Sam Caronia, to recover damages for personal injuries received when struck by the defendant’s automobile at a street intersection, and by his mother for expenses and medical services. Appeal by plaintiffs from a judgment entered upon a verdict in favor of the defendant. Judgment reversed on the law and a new trial granted, costs to appellants to abide the event. The court charged that the infant plaintiff, skating on roller skates upon a public street, was not a pedestrian, but was included in the term “ vehicle ” as defined by subdivision 7 of section 2, article I, of the Vehicle and Traffic Law, and also charged that it was the duty of the infant plaintiff, in turning to the right into Flatlands avenue, to keep as close to the right-hand curb as possible. The evidence shows that there was an unpaved strip twenty-one feet wide between the curb and the paved portion of Flatlands avenue. The charge was erroneous and prejudicial. (Eichinger v. Krouse, 105 N. J. L. 402; 144 A. 638; Huddy, Encyclopedia of Automobile Law [9th ed.], vols. 5-6, § 120, p. 201; Blashfield’s Cyclopedia of Automobile Law and Practice, vol. 2, §§ 1243 and 1254.) Lazansky, P. J., Hagarty, Carswell, Davis and Close, JJ., concur.