(dissenting). The action was brought to recover damages for personal injuries based on the alleged negligence of the defendant.
*135Plaintiff was walking northerly on the west side of Fifth avenue approaching Seventy-ninth street, in the city of New York. There is a transverse road running through Central Park at that point. Fifth avenue is a light-controlled street. According to plaintiff’s testimony, as he was about to cross the transverse at the crosswalk, he noticed that the lights were red for east and west traffic and that automobiles were halted in the transverse facing easterly waiting for a change of light. He commenced to cross and after proceeding about two-thirds of the way he was suddenly struck by defendant’s cab.
Other evidence in the case showed that defendant, an owner and operator of a taxicab, was traveling north on Fifth avenue. The lights on that thoroughfare were green. He halted at Seventy-ninth street but when he saw a chance to make a turn, with no traffic coming toward him, he turned left into the transverse.
Plaintiff’s claim on this appeal is prejudicial error in the charge. The trial justice in his main instructions to the jury stated that in crossing a street, “ a pedestrian has an equal right with a driver, but no more.” Upon the completion of the charge the following exception and request was made in behalf of plaintiff:
“ Mr. Weiss: I have one or two, if your Honor please. I except to that part of your Honor’s charge wherein your Honor said, in words or substance, that the rights of the parties were equal on the crosswalk in the circumstances.
“ The Court: Yes.
“Mr. Weiss: I ask your Honor to charge-the jury that if the jury find that the plaintiff was crossing at the crosswalk, with the lights in his favor and had almost completed his crossing, then plaintiff had the right of way over defendant’s automobile.
“ The Court: I decline so to charge * *
We think that in the circumstances of this case the refusal to charge as requested was erroneous. Notwithstanding any fixed traffic regulations, the operator of an automobile in making a turn into another street must do so with due regard for a pedestrian on a crossing and if it becomes necessary for the operator of the motor vehicle to stop his car to avoid an accident, he must do so. According to the defendant’s description of the roadway there was not sufficient space to pass around the plaintiff if the latter were at a point two-thirds across the transverse due to the presence of the cars stopped for the light. To avoid the accident, defendant would be obliged to stop and afford plaintiff the right of way to safely complete the crossing. The charge as requested should have been granted.
The judgment should be reversed and a new trial ordered.
Glennon, J., concurs.
Judgment affirmed, with costs.