Opinion
December 12, 1968
Appeal from the Monroe Trial Term.
Present — Bastow, P.J., Goldman, Marsh, Witmer and Henry, JJ.
Judgment unanimously affirmed, with costs. Memorandum: Subdivisions (a) and (b) of section 1140 and subdivision (a) of section 1142 Veh. Traf. of the Vehicle and Traffic Law are mutually exclusive under the circumstances of the controlled intersection in this case and both should not have been charged by the trial court. It would, indeed, be difficult to envision a situation where the comment of the New York Pattern Jury Instructions, applying to "Intersections Controlled by Stop or Yield Sign", that the two sections "therefore, should not be charged together" (PJI, p. 168) would not be applicable. A review of the evidence clearly demonstrates that the sole proximate cause of this accident was the negligence of appellant, particularly because of speed. The skid marks, the damage to signs after the impact, the distance defendant traveled after the accident, the damage to plaintiffs' vehicle and their injuries are so overwhelmingly indicative of defendant's negligence that the result would have been the same if the court had only charged subdivision (a) of section 1142, as it should have done. Where the appellant could not have prevailed upon any view of the facts, errors in instructions to the jury should be considered harmless (2 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 2002.02). Appellant has not been substantially prejudiced and the error in the instruction should be disregarded (CPLR 2002; see, also, Kaczmarskij v. Mattil, 23 A.D.2d 804). There is no justification in requiring these plaintiffs to be subjected to a new trial in order to get the same result as in the trial we are here reviewing.