
    Bert B. Smith, Respondent, v. Joseph C. Morelli, Appellant.
   Appeal by the defendant from a judgment of the Supreme Court, entered in the Office of the Clerk of the County of Broome on May 20, 1948, in favor of the plaintiff for personal injuries he sustained when he was struck by the defendant’s automobile, while crossing a city street between intersections. The accident occurred in the evening. There was evidence from which the jury might have found that the defendant was proceeding at a high rate of speed and without lights, which was sufficient to justify the conclusion that the defendant was negligent. Although the plaintiff was required by statute to yield the right of way to the defendant, neither his failure to do so nor his failure to see the approaching car can be held to constitute contributory negligence as a matter of law, under the circumstances disclosed by the record in this case. We find no judicial error in the admission of evidence or in the rulings of the court. Judgment affirmed, with costs. Hill, P. J., Heffernan, Brewster, Bussell and Deyo, JJ., concur.  