Schaffner v. Rockmacher

38 A.D.2d 835, 329 N.Y.S.2d 630, 1972 N.Y. App. Div. LEXIS 5451

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 1972
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, loss of services, etc., plaintiffs appeal from a judgment of the Supreme Court, Suffolk County, entered November 13, 1970, in favor of defendant, upon a jury verdict. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The findings of fact have not been considered. On April 28, 1962, the infant plaintiff, then five years old, was riding her bicycle on Grand Boulevard, in the Town of Islip, when she was struck by an automobile driven by defendant. In view of the infant plaintiff’s age at the time of the accident, it was prejudicial error for the trial court to charge the jury that she had a duty to observe certain provisions of the Vehicle and Traffic Law (Dugan v. Dieber, 32 A D 2d 815). The trial court also erred in excluding from one of plaintiffs’ exhibits, a Police Department Traffic Accident Report, a diagram showing the final positions of the automobile, the girl and the bicycle, and the measurements made by the police officer of the distance of the skid marks to the bicycle and the girl. The testimony adduced at the trial, including that offered by defendant, indicated that the infant plaintiff remained in the roadway in the same place where she landed, after being struck, until the police arrived and moved her. We have examined the other points raised by plaintiffs and have found them to be without merit. On the new trial the expert proof as to skid marks should be based upon a proper foundation. Martuscello, Acting P. J., Shapiro, Gulotta, Christ and Benjamin, JJ., concur.