Opinion
November, 1930.
Judgment reversed upon the law and the facts and a new trial granted, costs to appellant to abide the event. The court erred in refusing to charge, as requested by counsel for the defendant at folio 420 of the record, that if the accident happened because the driver of the plaintiff's car made a wide curve and ran into the defendant's car when the defendant's car was on the right side of the roadway and the plaintiff's car on the wrong side, the verdict must be for the defendant. ( Bambace v. Interurban St. Ry. Co., 188 N.Y. 288; Dambmann v. Metropolitan Street Ry. Co., 180 id. 384; McGrane v. Nassau Electric Railroad Co., 134 App. Div. 257.) Defendant was clearly entitled to this charge. It involved defendant's version of the accident resulting in injuries to the infant plaintiff, and if established, fully exonerated him. The court did not charge this in words or substance in its direct charge to the jury. Lazansky, P.J., Carswell and Scudder, JJ., concur; Kapper and Hagarty, JJ., concur upon the further ground that the verdict of the jury is against the weight of the evidence.