Di Napoli v. Long Island Railroad , 52 A.D.2d 589 ( 1976 )

In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered December 1, 1975, in favor of defendant, upon the trial court’s dismissal of the complaint at the close of plaintiff’s case, at a jury trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. No fact findings were presented for review. In our opinion the issue whether plaintiff was contributorily negligent presented a question of fact which should have been decided by the jury (cf. Delaney v Town of Orangetown, 44 AD2d 396, affd 36 NY2d 770; Rossman v La Grega, 28 NY2d 300). Hopkins, Acting P. J., Martuscello, Shapiro and Hawkins, JJ., concur; Latham, J., dissents and votes to affirm the judgment, with the following memorandum: The testimony of plaintiff as to the circumstances surrounding the accident, the speed at which he was going when he approached the crossing and the extent of his visibility in the fog and mist, makes it clear that he was not in sufficient control of his loaded tractor-trailer to be able to stop it in time to avoid a collision with defendant’s train, if it were on the crossing when he reached it. He was, therefore, contributorily negligent and he cannot recover (see Heaney v Long Is. R. R. Co., 112 NY 122, 129; Massey v Matza, 11 AD2d 36; Gordon v New York Cent. R. R. Co., 286 App Div 933).