
    Fern Babbidge, an Infant, by Vira Babbidge, Her Guardian ad Litem, et al., Appellants, v. Walter Pohl et al., Respondents.
   Appeal by plaintiffs from a judgment of the Supreme Court, entered in Green County upon a jury verdict of no cause of action. The action was brought to recover for personal injuries sustained by the infant plaintiff and derivative damages sustained by the infant’s mother. Plaintiffs contend that, as the infant plaintiff was walking in an easterly direction upon the north shoulder of a road at a point where the highway approaches a bridge, a car owned by defendant Walter Pohl and being driven by his wife, Elsie Pohl, in a westerly direction, was driven onto the shoulder of the road and struck the infant plaintiff. The defendant driver contends that the infant plaintiff was walking upon the paved portion of the road and was looking back. The driver testified that the ear did not actually strike the plaintiff but came to a stop so close to her that she became frightened and fell to the ground. The great weight of the evidence establishes, however, that the car struck the plaintiff and knocked her to the ground. The accident happened in broad daylight. The infant plaintiff was 15 years of age. The jury returned a 10 to 2 verdict of no cause of action, expressly reporting to the court that it found both the defendant driver and the infant plaintiff negligent. The negligence of the defendant driver is amply supported by the evidence. The finding that the infant plaintiff was also negligent, however, is against the weight of the evidence. If she was walking on the shoulder, as she testified, she was clearly free from negligence. If she was walking on her left side of the pavement she had a right to do so. It is undisputed that she was in full view of the defendant driver in daylight. The accident seems solely attributable to the failure of the defendant driver to sound a warning or stop her ear until it was too late. Judgment reversed, on the law and facts, and a new trial ordered, with costs to abide the event. Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.  