I would affirm. Defendant-appellant Roseann Gerold had been a licensed operator only a few weeks prior to the accident herein. The jury, accepting as true evidence that the traffic light was green in her favor and red against the truck, as she entered the intersection, was free to conclude that she saw (as she testified) the truck entering the intersection in time to avoid the collision had she exercised reasonable care. The fact that the light was in her favor did not absolve her of using due care to avoid the accident if possible. (See Ferraro v. Garden City Park Fire Comrs., 259 App. Div. 121, 122; Merkling v. Ford Motor Co., 251 App. Div. 89, 95-96.)
Under the circumstances disclosed by this record, it was not prejudicial error to receive in evidence a portion of the bill of particulars. “ Pleadings are always before the court without being formally offered in evidence. They may be referred to by counsel during the trial and their contents may easily be brought to the attention of the jury.” (Newton v. Livingston County Trust Co., 231 App. Div. 355, 362.) See, also, Continental Leather Co. v. Liverpool, Brazil & Riv. Plate Steam Nav. Co. (228 App. Div. 707) where the court said: “In our opinion, the bill of particulars is an amplification of plaintiff’s complaint and, therefore, a part of that pleading which is always before the court, and need not be offered in evidence. (Roscoe Lumber Co. v. Standard Silica Co., 62 App. Div. 421.) ” Furthermore, the court made it clear in its charge that these allegations are merely claims in necessary pleadings and nothing more. The court clearly stated that the allegations in the bill of particulars did not constitute evidence of negligence and clearly informed the jury of the limited purpose for which reference to the bill of particulars was permitted and that its verdict must be arrived at solely on the testimony.
The record does not, in my opinion, support the conclusion drawn by the majority that the cross-examination of Miss Drisler constituted an attack upon her testimony as a recent fabrication. Actually, the cross-examination was rather limited. She admitted having been told by defendant-appellant’s trial counsel’s assistant that both vehicles were going slowly and which vehicle passed the red light. On redirect she testified fully concerning her conversation with the police officer on the night of the accident which was consistent with her testimony on direct. Under these circumstances no harm resulted from the exclusion of her written statement.
The Trial Justice, in an excellent position to assess the evidence, denied appellant’s motion to set aside the verdict. An *396appellate court is not justified in lightly disturbing the trial court’s action. (See Grunenthal v. Long Is. R. R. Co., 393 U. S. 156 [1968].)
Capozzoli, J. P., Markewich and Murphy, JJ., concur with McNally, J.; Nunez, J., dissents in an opinion.
Judgment, Supreme Court, New York County, entered on November 23,1970, so far as appealed from reversed, on the law and the facts, as it relates to defendant-appellant, and a new trial directed on the issue of liability as to defendant-appellant, with costs and disbursements to abide the event.