(dissenting). I vote for reversal on the law and a new trial.
The exception taken to the right of way rule charged and the request to charge seem to me to have sufficiently apprised the trial court as to the error complained of and as to counsel’s request that section 82-a be charged in its entirety. The section had then been in effect more than three years and the assertion in appellant Rumsey’s brief that it was referred to in summation is not denied.
Neither can I agree that the effect of the separated roadways of Route 17 was to create two intersections of Route 17 and Lackawanna Avenue, either within the statutory definition (Yehicle and Traffic Law, § 2, subd. 6) or practically. The mall dividing the four-lane highway was estimated to be from 15 to 18 feet wide, the minimum estimated being less than the length of most automobiles and the maximum less than the length of many. From this it follows, if respondents’ theory is correct, that a driver might properly enter the roadway for eastbound traffic but then be obliged to stop for westbound traffic with some part of his car exposed to oncoming traffic in one roadway or the other, thereby creating a new condition of hazard.
I do not believe that the statutory definition may be extended so as to comprehend and permit so dangerous a situation. It would seem that this view finds some confirmation in the language of section 120 of the Yehicle and Traffic Law as enacted by chapter 698 of the Laws of 1957 to become effective July 1, 1958 as ‘ ‘ both a recodification and a revision of the rules of the road and other related provisions of the Yehicle and Traffic Law.” (Memorandum of Joint Legislative Com*466mittee on Traffic Violations.) Subdivision “ (a) ” of the new section defines ‘ ‘ intersection ’ ’ in terms not greatly different from the present definition (§ 2,'subd. 6) and subdivision “ (b) ” then provides, in part: “ Where a highway includes two roadways thirty feet or more apart, then every crossing of each roadway of such divided highway by an intersecting highway shall be regarded as a separate intersection.” (Emphasis supplied.) Nevertheless, and in any event, the trial court’s charge was not predicated upon the theory of two separate intersections. The error in charging the substance of the repealed subdivision 4 of section 82, with no reference to the qualification of the rule by subdivision (a) of section 82-a, was not harmless, even if the theory of two intersections be indulged, as there was evidence upon which the jury could have found that appellant Bumsey had crossed the first intersection and was in the second intersection before respondent Nelson reached it.
The factual situation was further complicated by the circumstance that the divided highway was so newly constructed that the usual warning signs had not been placed. This seems to me an additional reason for a complete definition of the rules to which appellant Bumsey ⅛ operation was subject, under section 82-a.
Fostbk, P. J., and CooN, J., concur with Bergaít, J.; GibsoN, J., dissents in an opinion.Judgments affirmed, with costs.