Roles v. John A. Schwarz, Inc.

244 A.D. 729

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1935
• Status: Published

Opinion

Action by the infant plaintiff to recover damages for personal injuries and by her father to recover for loss of services and expenses. Judgment for plaintiffs reversed on the law and a new trial granted, costs to abide the event. The accident happened within the city of New York. In our opinion, it was prejudicial error for the court to leave to the jury the question of the applicability of sections 81, 85 and 86 of the Vehicle and Traffic Law of the State, applied to this case, to charge that a violation of those sections “ is negligence per se if the violation of that statute contributed toward the happening of the accident ” and to charge, “ However gentlemen, where we violate the statute of the State of New York as expressed in this Vehicle and Traffic Law and we have no explanation or excuse for so doing, the law says that is negligence.” A violation of the traffic regula^ tions of the police department of the city of New York, which did apply to this case, is not negligence per se, but may be considered only as some evidence of negligence in connection with the other facts and circumstances of the accident. Lazansky, P. J., Hagarty, Scudder, Tompkins and Davis, JJ., concur.