On defendants' appeal from Supreme Court.
For the appellants, Kellogg & Chance.
For the respondents, Leonard J. Emmerglick.
The opinion of the court was delivered by
PARKER, J. The suit arose out of a collision between an auto truck of the corporate defendant driven by the defendant Brydon, and a bicycle on which the infant plaintiff, Joseph Kuczko, then a boy of ten years old, was riding. The bicycle was propelled by his cousin, a boy of seventeen named Harpas, who is not a party to this suit, and Joseph was riding in front of Harpas on the upper cross-bar. The bicycle was on the right of the road, as the jury could find, and the truck and bicycle came together in the act of passing. It is not argued that there was no evidence of negligence on the part of the
truck driver: the questions raised relate mainly to contributory negligence.
The grounds of appeal are four in number:
1. Denying a motion to nonsuit.
2. Charging the jury that "of course the boys on this bicycle, which is classed as a vehicle under our Traffic act, and the operator of this truck had as much right on the highway one as the other * * *.
3. Charging the jury in a quoted passage, the substance of which is that a bicycle is a vehicle within the intendment of the Traffic act (Pamph. L. 1928, p. 721), and entitled to the same rights as other vehicles. the same rights as other vehicles.
4. Charging the jury as follows:
"We have held in this state that a breach of the Traffic act is not of itself indication of negligence * * * and the court has said that while it is true that a breach of the Traffic act ...