Opinion
October 28, 1970
Appeal from a judgment of the Supreme Court, entered October 30, 1967 in Albany County, upon a verdict rendered at a Trial Term, in favor of defendants. Plaintiff was the operator of an automobile which was struck in the rear by another automobile operated by defendant Sanders and owned by the other defendant. Prior to the accident plaintiff was proceeding westerly on Washington Avenue in the City of Rensselaer and had brought his vehicle to a full stop to pick up two neighborhood boys looking for a ride. The jury returned a verdict of no cause of action against plaintiff, but gave a verdict to the absentee owner for damages to the vehicle. It is plaintiff's primary contention on this appeal that the trial court erred in granting defendants' request to charge subdivision (a) of section 1201 Veh. Traf. of the Vehicle and Traffic Law. Concededly, this section pertains to stopping, standing or parking a vehicle outside of business or residential districts. There is nothing in the record to establish that this accident happened on a highway within the contemplation of subdivision (a) of section 1201 Veh. Traf. of the Vehicle and Traffic Law. The charge clearly prejudiced plaintiff's rights for it gave the jury an erroneous basis on which to find negligence on the part of plaintiff. Since defendants requested the charge and plaintiff excepted thereto, the verdict should be reversed and a new trial granted. (Cf. Mravlja v. Hoke, 22 A.D.2d 848.) Judgment reversed, on the law and the facts, and a new trial granted, with costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.