Opinion
July 8, 1970
Appeal (1) from a judgment of the Supreme Court in favor of defendant, entered October 28, 1969 in Ulster County, upon a verdict rendered at a Trial Term, and (2) from an order of said court, entered March 5, 1970, which denied plaintiff's motion to set aside the verdict. The complaint alleges that, while plaintiff was "walking as a pedestrian on the shoulder of the Bruceville Road and off the paved portion" of said road and "in fact, even farther off the shoulder of the road and onto private property", a vehicle owned and operated by defendant left the paved portion of said highway and struck him. The bill of particulars specifies that the accident occurred "off the road and off the shoulder and on the lawn of * * * one Flanagan." Plaintiff testified that he was walking on the left side of the road "right on the shoulder", as well as that he was "Just off the shoulder * * * on the grass", and that, when he heard defendant's car approaching, he got off the road five or six feet and was struck. Defendant related that his car and plaintiff were both on the road at impact. There was proof, variously, that the road was 20 to 25 feet wide, that it was 16 to 18 feet wide, that the pavement at the point was approximately 12 feet wide, and that there were no sidewalks in the area, with "people's lawns coming virtually to the pavement * * * [w]ith maybe a little gravel or something alongside from sanding the road." The court instructed the jury: "I charge you that the plaintiff cannot recover unless he proves that he was injured in substantially the manner that he claims. The plaintiff claims that the accident occurred off the highway, while he was on the lawn. If you find that the accident occurred on the highway as contended by the defendant, your verdict must be for the defendant." Plaintiff's attorney stated he had no exceptions. Then, in response to defendant's request and just before the jury retired for deliberation, it was charged that, unless they found that defendant's car left the highway and went upon the lawn of Flanagan and struck the plaintiff, plaintiff could not recover. Section 118 Veh. Traf. of the Vehicle and Traffic Law defines highway as the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel. The shoulder is part of the highway and may be used for travel ( La Rue v. Tiernan, 260 App. Div. 337, 342, affd. 285 N.Y. 550). Plaintiff, as a pedestrian, had the right to be upon the highway and, if it was found that he was, certainly that fact, of itself, would not constitute contributory negligence so as to bar recovery ( Miller v. Hine, 281 App. Div. 387, 392; see Vehicle and Traffic Law, § 1156, subd. [b]). Every driver of a vehicle must exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding a horn when necessary (Vehicle and Traffic Law, § 1154; Hogeboom v. Protts, 30 A.D.2d 618, 619). It is only where the finding of a specific fact is completely determinative of the issues that it properly can be made the basis of an instruction such as given here. To advise the jury that plaintiff could recover only if defendant's automobile left the highway and went upon the lawn foreclosed from the consideration of the jurors the broader issues of negligence and contributory negligence and constituted substantial and prejudicial error ( Gustavson v. Southern Blvd. R.R. Co., 292 N.Y. 309, 315; Grynbaum v. Metropolitan Life Ins. Co., 272 App. Div. 216, 218; Jacobs v. Gelb, 271 App. Div. 101, 102). Judgment and order reversed, on the law and the facts, and a new trial ordered, with costs to abide the event. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Cooke, J.