The injuries of the infant plaintiff incurred as a result of the accident were admittedly serious. The parties stipulated to omit from the record the medical testimony and no point is raised on appeal that the verdicts of $10,000 in favor of the infant plaintiff and $2,000 in favor of his father, as guardian ad litem, were excessive. Defendants’ contention on appeal is that the court’s charge on the ordinance relating to a hospital street was erroneous and inapplicable and on that basis defendants ask for reversal of the judgment and a new trial. The action was tried and submitted to the jury as a common-law action for negligence, not an action for breach of a statute or ordinance. As the trial court properly charged, there were two separate and irreconcilable versions of the happening of the accident. Plaintiffs’ version was that while the infant plaintiff was standing still in a crouching position in the street with his back toward the direction from which the car was approaching he was run down, by the car. Defendant Goldberger testified that the boy suddenly ran out into the street backwards as if he was trying to catch something, and thus ran into defendants’ car.
Obviously, if the jury had not accepted plaintiffs’ version of the accident and rejected defendants’ version it could not have found verdicts in plaintiffs’ favor. From the nature of the divergent claims, the instructions on the ordinance could have no real weight on the jury’s determination of the salient issues of fact in the case. The court properly instructed the jury that if the boy ran into the car the verdict must be for the defendants; but if the jury determined the boy was standing still and was run down carelessly and recklessly, the jury must then consider whether the boy was guilty of contributory negligence. Such were the real issues on the trial. Accordingly, assuming there was error in charging on the ordinance, it was immaterial and not prejudicial error.
That the hospital signs were on the street was shown without objection or exception, and the sign appears on one of the photographs introduced without objection. The exception to the charge relating to the ordinance gave no indication of the basis of objection now urged on appeal. Defendants’ counsel merely excepted to that part of the charge “ in respect to the ordinances in connection *275with hospitals.” And immediately thereafter defendants’ counsel requested a further charge that the violation of an ordinance can be considered evidence of negligence only where it is the proximate cause of the accident. Following the colloquy regarding the ordinance, this request amounted to an enlargement of the charge relating to the ordinance at the request of defendants’ counsel.
The verdict in plaintiffs’ favor was not against the weight of the evidence but is amply supported by the evidence. In view of the nature of the proof on both sides, the error, if any, with regard to the ordinance could not have misled the jury on the real issue for their consideration.
Accordingly, I dissent and vote to affirm the judgment appealed from.
Judgment reversed and a new trial ordered, with costs to the appellants to abide the event.