I do not think the judgment should be reversed on the ground that the verdict was against the weight of evidence. The negligence of the defendant’s servant was clearly for the jury.
His chauffeur repeats many times that fie was twenty feet south *479of the south curb of Forty-fourth street when he first discovered the plaintiff on his bicycle twelve feet east of the Madison avenue line on the south side of that street. He does not say that the plaintiff was close to the curb, and presumably he was not riding on the curb line. The plaintiff testifies that he was riding on the north side of that street. The defendant’s proof is that the automobile could be stopped within twenty-four feet.
The weight of the evidence is that the accident occurred on the downtown car track on Madison avenue, or further west, and north of the center line of Forty-fourth street, and that the left fore wheel of the automobile hit the hind wheel of the bicycle on the left side and from the rear.
The accident could have been avoided as it turned out had the chauffeur kept straight ahead, or had he turned sharply around the southwest corner of Forty-fourth street instead of going to the north side of Forty-fourth street to make his turn. Instead of stopping within twenty-four feet in which it could have been stopped, according to the defendant’s own proof, it proceeded, before stopping, twenty feet to the southerly curb of Forty-fourth street, and from that point diagonally to the westerly side of Madison avenue and Forty-fourth street, which must have been a distance of at least twenty feet more.
While the defendant would not be liable for an error in judgment, it was a question for the jury whether or not the chauffeur exercised proper care in doing what he did, and in not stopping sooner than he did, nor should the verdict be disturbed withrespect to any negligence on the part of plaintiff. By his testimony when he approached Madison avenue he looked south and saw nothing but a van between his street and Forty-third street,, and looking north he saw a car and an automobile coming southerly from Forty-fifth street. It is true he is not corroborated as to the van, but the jury had a right to believe his testimony, and he fulfilled his duty in looking if his testimony is true.
The chauffeur testifies that he turned to the left to give the plaintiff an opportunity to turn to the right. When he saw that the plaintiff was not turning to the right, but was proceeding straight across Madison avenue, he himself could have turned more sharply to the left or turned back to the right and kept straight *480ahead, and if he had done either the accident would have been avoided. The plaintiff did not turn to the right because, as lie says, he did not see the automobile at all until it came on him from behind. Upon the testimony it was a fair question for the jury to determine whether or not the chauffeur and the plaintiff exercised the care which each was required to exercise under the circumstances, and I think on the facts the judgment should not be disturbed.
I concur, however, in the granting of a new trial because of the errors in refusing to charge.
O’Bbien, P. J., concurred. .
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.