Story v. Howes

41 A.D.2d 925, 344 N.Y.S.2d 10, 1973 N.Y. App. Div. LEXIS 4395

Opinion

Judgment, Supreme Court, New York County entered on December 26, 1972, unanimously reversed, on the law, and vacated, and a new trial directed, with $60 costs and disbursements of this appeal to abide the event. The plaintiff, aged 11 at the time, sustained injuries as he rode his bicycle north on Broadway in Manhattan, when the rear wheel of his bicycle was struck by the defendant’s ear coming from the intersection at 120th Street and Broadway. The jury having found for the defendant, the only question is as to certain aspects of the charge. While there may have been some errors, not likely to recur, that portion of the charge, that allowed the jury to consider the question of assumption of risk, was erroneous. The mere riding of a bicycle does not mean the assumption of risk by the rider that he may be hit by a car. (Cf. Bloom v. Dalu Corp., 269 App. Div. 192.) Concur — Nunez, J. P., Kupferman, Lane, Steuer and Capozzoli, JJ.