
    Edward Jacobs and Herman Jacobs, Copartners, Doing Business Under the Firm Name of Jacobs Bros., Appellants, v. Richard Carvel Company, Inc., Respondent.
    (Supreme Court, Appellate Term, First Department,
    May, 1916.)
    Negligence.— who guilty of — evidence — trial — refusal to allow copy of traffic regulations to be taken to jury room.
    Where in an action to recover for loss of a horse and repairs to a wagon as the result of a collision at a street intersection in New York city the evidence is to the effect that defendant’s motor truck was proceeding on the wrong side of the street and had made the turn at the street intersection before reaching the center of the street, and the jury upon the issue as to whether defendant’s motor truck ran into plaintiffs’ horse or whether the horse ran into the truck decided in favor of defendant, plaintiffs, upon a claim that defendant’s driver did not comply with the city traffic regulations which require that a vehicle turning to the left into another street shall pass to the right of and beyond the center of the street intersection before turning, were entitled to have the jury charged that if they found .that the course taken by defendant’s driver was the wrong course defendant was guilty of negligence in view of the fact that the court refused to allow a copy of the traffic regulations to be taken to the jury room.
    Guy, J., dissents.
    
      Appeal from a judgment entered February 23, 1916, in the Municipal Court of the city of New York, borough of The Bronx, second district, in favor of defendant after a trial before the court and a jury.
    Frank Krevoruck (J. J. Kramer, of counsel), for appellants.
    Griffin & Hannon (Nathan F. Griffin, of counsel), for respondent.
   Cohalan, J.

Action to recover damages for the loss of a horse and for repairs to a wagon. On February 9, 1915, plaintiff’s horse and wagon in charge of a driver were proceeding easterly on One Hundred and Thirty-eighth street in the borough of The Bronx. When the driver reached a point near the intersection of Brook avenue and One Hundred and Thirty-eighth street, there was a collision between the horse and wagon and a motor truck owned by the defendant, which had turned into One Hundred and Thirty-eighth street diagonally in a northwesterly direction. In consequence of the collision the horse received injuries which necessitated its being shot. The left shaft of the wagon was broken and the harness partially destroyed.

The question involved in the action was whether the defendant’s truck ran into the plaintiffs’ horse, or whether the plaintiffs’ horse ran into the defendant’s truck, and the issue was decided by the jury in favor of the defendant.

On the trial a certified copy of chapter 24, section 11, of the city traffic regulations was received in evidence. These regulations require that a vehicle turning to the left into another street shall pass to the right of and beyond the center of the street intersection before turning. The evidence in the case was that the truck was proceeding northerly on the left or the wrong side of the street, and had made the turn before it had reached the center of One Hundred and Thirty-eighth street. The court had said nothing declaratory of the traffic regulations in evidence, and at the close of the charge this request was made and refused: “ I ask the court to charge the jury, that if they find that the course taken by the defendant chauffeur as testified to by him was the wrong course, that the defendant was guilty of negligence, and that the plaintiff is not guilty of negligence contributing thereto, that is, the course taken as specified to by the chauffeur.”

While the latter part of this request may not be clear, yet the plaintiffs were entitled to have the first portion thereof stated to the jury. This was import-, ant, too, in view of the fact that the court, in its discretion, refused to allow the jury to take the copy of the traffic regulations to the jury room. The course taken by the defendant’s chauffeur in driving on the Wrong side of Brook avenue and taking a short turn into One Hundred and Thirty-eighth street was an element of importance for the jury to consider as bearing on the defendant’s negligence. In fact, this court has already so held in this case. Jacobs v. Carvel Co., 156 N. Y. Supp. 766.

It might be that the reckless driving on the part of the driver contributed to the accident, and that that action was sufficient to overcome the mere fact that the chauffeur was violating a city ordinance, but the jury was entitled to an instruction to that effect.

Bijub, J., concurs in the result; G-tjy, J., dissents.

Judgment reversed, new trial ordered, with thirty dollars costs to appellant to abide event.  