Although the quotation from section 58-a of the Vehicle and Traffic Law given in the charge was somewhat incomplete, in my opinion it was not erroneous. It is obvious that plaintiff driver violated this section. Although the car was not “ parked ” as defined in the Vehicle and Traffic Law, it was, in my opinion, ' ‘ left standing” as-that term is defined in subdivision 20-a of section 2 of said law. Section 58-a is violated when a vehicle is stopped on a public highway, occupied by persons capable of operating it, “ for a period longer than necessary to load or unload passengers or freight ”. In the present case the car was not stopped “ to load or unload passengers or freight ”, but rather to coax the family dog into the car. Although one passenger did alight from the car just prior to its being struck, this was merely incidental to inducing the dog to enter the car. Therefore, the facts do not bring the plaintiff’s acts within the statutory exceptions from the effect of section 58-a and the failure to charge such exceptions was not error. Further, plaintiffs took no exception to the charge and made no requests. Assuming, however, that it be construed that there was a “ loading or unloading passengers or freight ”, I do not believe that taking five to seven minutes to do so is a reasonable length of time under the circumstances of the ease. Furthermore, although the shoulder of the highway was measured at over 13 feet in width by the defendant, plaintiff chose to stop her car partly on the highway and made no effort to drive it onto the shoulder. The question of plaintiffs’ contributory negligence was for the jury. I find no reversible errors in the charge.
All concur except Williams, P. J., who dissents and votes for affirmance, in a separate memorandum.
Present—Williams, P. J., Goldman, Halpern, McClusky and Henry, JJ.
Judgment reversed on the law and facts and a new trial granted, with costs to the appellants to abide the event.