Mazzuka v. Long Island Rail Road , 73 A.D.2d 959 ( 1980 )

— In a wrongful death action, plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered December 8, 1976 in favor of the defendants, upon the trial court’s dismissal of the complaint at the close of the plaintiff’s case, upon a jury trial. Judgment affirmed, without costs or disbursements. Although a plaintiff in a wrongful death action is entitled to the benefit of every favorable inference which can reasonably be drawn from the evidence (Swensson v New York, Albany Desp. Co., 309 NY 497), not every case raises a factual issue which must be submitted to the jury (Scurti v City of New York, 40 NY2d 433). Affording the instant plaintiff the benefit of every favorable and reasonable inference, there is no proof that the defendants were negligent. Furthermore, the facts clearly demonstrate that the decedent was contributorily negligent. Mangano, J. P., Rabin, Gulotta and Margett, JJ., concur.