In my view the trial court was correct in refusing to charge that the provisions of subdivision (a) of section 1152 of the Vehicle and Traffic Law applied to the actions of this decedent. On this heavily traveled four-lane dual highway there were no sidewalks, no marked crosswalks, and, in fact, no intersections for some considerable distance. It was necessary for the decedent to cross the highway to call for assistance for his disabled vehicle. To charge him with more than the duty of reasonable care and to, in effect, impose a statutory liability upon him, is both unreasonable and unrealistic. I cannot conclude it was the intent of the Legislature to burden a pedestrian in such a locale with such an obligation. The jury passed upon the reasonableness of the decedent’s conduct and has fixed responsibility for his death upon the defendant. The jurors were adequately instructed concerning the respective legal responsibilities of the parties and their determination should be upheld.
Sweeney, Larkin and Reynolds, JJ., concur with Greenblott, J. P.; Kane, J., dissents and votes to affirm in an opinion.
Judgment reversed, on the law, and a new trial ordered, without costs.