McCormick v. Safran , 276 A.D.2d 945 ( 1950 )

Memorandum: The Trial Justice correctly charged the jury that the crux of the lawsuit was whether or not defendant should have seen the the wire, contact with which by her automobile caused plaintiff’s injuries, and also that plaintiff had the burden of proving that defendant saw or was bound to see the wire in time to avoid injury to plaintiff. (See Bush v. Goodno, 233 App. Div. 152, affd. 259 N. Y. 538.) However, he also charged subdivision 1 of section 56 of the Vehicle and Traffic Law, relating to speed of operation of a motor vehicle on a highway, making no reference to any evidence upon the subject, or the application or relevance, if any, to the evidence. There was no evidence as to speed in miles per hour, or whether fast or slow, but merely that the speed of the vehicle was increased within the intersection. Exception to that portion of the charge was duly taken on the ground that it had no application to the facts in the case. We think that such a charge was prejudicial error. (Uliaszek v. Buczkowski, 259 App. Div. 967; City of Auburn v. Roate, 246 App. Div. 461.) Moreover, we think the verdict was against the weight of the evidence. All concur. (Appeal from a judgment for plaintiff in an automobile negligence action. The order denies a motion for a new trial.) Present — Taylor, P. J., MeCurn, Love, Vaughan and Kimball, JJ.