Hicks v. Demascole

Judgment in favor of defendant Demaseole, unanimously reversed on the law and facts and in the interest of justice and a new trial granted, with costs to the appellant to abide the event. Memorandum: The trial court charged subdivision (a) of section 1152 of the Vehicle and Traffic Law relating to the duty of a pedestrian crossing a highway at a place other than a crosswalk and further charged that a violation, if found, was negligence in and of itself. Under the facts of this ease the charge was erroneous. Plaintiff being an infant, seven years of age, she was chargeable with negligence for violation of the statute only if she had the age, experience, intelligence, and development to understand the meaning of the statute and to comply therewith. (Locklin v. Fisher, 264 App. Div. 452; Van v. Clayburn, 21 A D 2d 144; Chandler v. Keene, 5 A D 2d 42; 1 N Y P J I 138.) While no exception was taken to the charge, the error is so fundamental that the judgment must bq reversed and a new trial ordered in the interests of justice. (De Joseph v. Gutekunst, 13 A D 2d 223, 226.) (Appeal from a judgment of Onondaga Trial Term dismissing, the complaint on the merits, in a negligence action.) Present- — Williams, P. J., Goldman, Henry, Del Vecehio and Marsh, JJ.