Biaggio Viscardo, Individually and as Guardian ad Litem of Aniello Viscardo, an Infant, Appellant, v. Harvey Galloway and John Thorton, Respondents

Biaggio Viscardo, Individually and as Guardian ad Litem of Aniello Viscardo, an Infant, Appellant, v. Harvey Galloway and John Thorton, Respondents. [MAJORITY] Judgment reversed upon the law, and a new trial granted, costs to abide the event. In our opinion, the granting of a nonsuit was erroneous. The case of Martin v. Herzog (228 N. Y. 164) is distinguishable from the case at bar. The only question determined in that ease was that.a charge that the absence of light upon a vehicle was only some evidence of negligence and a refusal to charge that such absence of lights was “ prima facie evidence of negligence ” was error. The Court of Appeals did not determine that the absence of lights, in violation of the statute, was under all circumstances negligence as a matter of law. The question as to whether the absence of light on plaintiff’s bicycle was a proximate cause of the injury, in view of the circumstances disclosed by the evidence, was a question for the jury. Lazansky, P. J., Young, Hagarty, Seeger and Cars-well, JJ., concur.