Fruehauf v. Reich

Judgment and order reversed upon the law and the facts and a new trial granted, costs to abide the event. We are of opinion that a new trial should be had in the interests of justice. The statement of the court, in its charge, that there was no law, ordinance or statute, or anything else, which deprived the defendant cf the right of turning in the street, that defendant had the right to turn in the center of the street, that if he could not make a complete turn he had the right to back out, and that the mere fact that he did that thing was not in itself sufficient to charge him with negligence, while strictly correct, was calculated to give the jury a wrong impression as to defendant’s right in this respect in view of section 7, subdivision C, of the Regulations of the Police Department of the City of New York. Furthermore, the statement of the court, in its charge, to the effect that some part of plaintiff’s body struck the rear end of defendant’s automobile, which was being backed out slowly, was not in accordance with the testimony offered in behalf of the plaintiff. Plaintiff’s witnesses testified that the car backed slowly at first but was backing fast when the collision occurred. This testimony was most important upon the question of defendant’s negligence. We have not overlooked the fact that the police regulation was not referred to at the trial, or that the statement of the court last referred to was not objected to. Young, Scudder and Tompkins, JJ., concur; Lazansky, P. J., and Kapper, J., dissent and vote to affirm on the ground that the case for plaintiff upon the facts was a close one at best; that it was fairly tried; and that to the charge no exception was taken by plaintiff. Defendant prevailed with the jury and should prevail here.