Opinion
March 22, 1948.
Present — Lewis, P.J., Carswell, Johnston, Adel and Wenzel, JJ. [See post, p. 973.]
Appeal by defendant from a judgment in favor of plaintiff in an action to recover damages for the death of plaintiff's intestate, a fourteen-year-old boy, who was killed when the bicycle which he was riding was struck by an automobile proceeding in the same direction, owned by defendant and driven by one Duffie. Duffie, a soldier who was stationed at a military field where defendant's daughter was employed, had been given permission to take the car by the daughter, who used it daily with defendant's consent and without restriction in going to and from the field. Judgment unanimously affirmed, with costs. The issues of negligence and contributory negligence were properly submitted to the jury as questions of fact. Under the circumstances of this case, the intestate was not guilty of contributory negligence as a matter of law because of his violation of section 79 and subdivision 8 of section 88 Veh. Traf. of the Vehicle and Traffic Law. The issue of whether the car was being operated with defendant's permission, express or implied, was likewise a question of fact for the jury. ( Jackson v. Brown Kleinhenz, Inc., 273 N.Y. 365; Clarke v. Mason Au Magenheimer Confectionery Mfg. Co., 240 App. Div. 1001, affd. 264 N.Y. 661; Woodland v. Cote, 252 App. Div. 254.)