Gabrielli v. Biro

140 A.D.2d 948, 529 N.Y.S.2d 626, 1988 N.Y. App. Div. LEXIS 5775

Opinion

Memorandum: The trial court erred when despite timely objection, it instructed the jury that plaintiff was negligent when she failed to stop at the stop sign at the intersection of St. Paul Street and Lockport Road. Because conflicting evidence was presented on the issue of whether plaintiff stopped at the stop sign, it presented an issue of fact for the jury’s determination. It was also error for the court to refuse plaintiff’s request to charge Vehicle and Traffic Law § 1180 (a) and (e) and to charge the jury that defendant did not violate any law. As defendant approached this intersection, she accelerated and pulled into the oncoming lane of traffic to pass a slow-moving van. She further testified that her view of the intersection was blocked. Plaintiff, who was crossing the intersection on her bicycle in front of the van, was struck in the intersection by defendant’s vehicle. From these facts, the jury could determine that defendant violated Vehicle and Traffic Law § 1180 (a) and (e) by driving her vehicle at a speed greater than was reasonable and prudent when entering this intersection. Further, the court should have- charged those portions of PJI 2.80 requested by plaintiff (Sontag v Mulkerin, 63 AD2d 699). We have examined plaintiff’s remaining contentions and find them to be without merit. (Appeal from judgment of Supreme Court, Niagara County, Sedita, J. — negligence.) Present — Doerr, J. P., Den-man, Green, Lawton and Davis, JJ.