Plaintiff’s intestate met his death in a collision on July 18, 1929, between a truck owned by the defendant Railway Express Agency, Inc., and operated by the defendant Waldraff and a bicycle on which plaintiff’s intestate was riding. The truck was a large covered vehicle with solid sides. Plaintiff’s intestate and the truck were proceeding in the same direction on the street. Plaintiff’s intestate had come from a position behind the right side of the truck and had overtaken it and was beside the truck on its right side when the driver of the truck turned to the right into an intersecting street. The truck was equipped with a device of a movable signal arm to the left of the driver.
The complaint alleges negligence on the part of the defendants in general terms in the management and operation and control of *405the truck. The plaintiff introduced proof that before making the turn the driver of the truck did not cause the arm of the signaling device to be extended. There is also proof that the signaling device could not be seen from the rear of the right-hand side of the truck at any point within seventy feet of the rear of the truck.
The case is devoid of evidence that the plaintiff’s intestate was in a position where he could have seen the signal had the arm been operated. In fact, the undisputed evidence is to the contrary. Under these circumstances the failure to operate the signaling device, even though deemed violative of a statute (Vehicle and Traffic Law, § 83, subd. 1), did not contribute to the accident.
The defendants’ counsel asked the court to charge “ that by reason of the fact that the boy was overtaking and riding alongside of the truck on the right side, and in placing himself in a position from which he could not have seen the signal arm had it been extended from the left front side of the truck, that the driver’s omission to extend it, if so found to be the fact, when slowing down and making the right turn, was not a contributing cause of the accident for which the defendant can be held liable.” And this the court declined to charge.
The conditions assumed in this question are established by undisputed evidence. It was, therefore, error, for the reasons already indicated, to decline the defendants’ counsel’s request. And, in view of the closeness of the case, we think it reversible error.
All concur, except Thompson and Crosby, JJ., who dissent and vote for affirmance in a memorandum by Thompson, J. Present — Sears, P. J., Crouch, Taylor, Thompson and Crosby, JJ.