Opinion
May 7, 1952.
Appeal from Supreme Court, Albany County.
The accident in which the infant plaintiff was injured occurred at or near the intersection of two streets in the city of Albany, at which a traffic control signal was in operation. She testified that when she started to cross the intersection the light was in her favor, but when she reached the middle of the street the light had changed against her. She wanted to catch a bus which was passing her and about to enter another intersecting street to the south and west of her. When the light changed against her she says that she stepped backward and was then struck by the defendant's car which came from a westerly direction on the street she was attempting to cross. However, she also testified that when she was struck she was just opposite the easterly corner of Clermont Street, where the bus was entering, and that point is west of the intersection where she started to cross. Hence it is clear that she did not follow the crosswalk at the intersection where the traffic light was located, but took an oblique course after the bus. Possibly this would have been contributory negligence as a matter of law in the case of an adult, but not in the case of an infant eleven years of age. When the defendant's car stopped it was a short distance past the intersection where the traffic light was located, and the jury could find his car travelled approximately 100 feet after the infant plaintiff was struck. And if her testimony is to be given credence the jury might find that his car was to the left of the center of the street. No horn was sounded and the streets were in an icy condition. Under the circumstances we think a nonsuit was improper. Orders and judgments are reversed, and a new trial is directed, with costs to the appellant to abide the event. Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ., concur.