McPartland v. Bitzen , 42 A.D.2d 897 ( 1973 )

Judgment, Supreme Court, Bronx County entered on March 20, 1973, in defendant’s favor, after dismissal by the court of the complaint, unanimously reversed, on the law, the complaint reinstated and a new trial directed, with $60 costs and disbursements to abide the event. In this action for damages for personal injuries, tried before a jury on the issue of liability only, the court dismissed the complaint at the end of the plaintiffs’ ease, finding plaintiff guilty of contributory negligence and defendant free from negligence. The complaint having been dismissed, plaintiff is entitled to the full benefit of his proof and all favorable inferences flowing therefrom. On the evidence in this case it cannot be said as a matter of law that plaintiff was guilty of contributory negligence and defendant totally free from fault. There was testimony by plaintiff James MePartland as to his progress across the roadway, where he stopped, when and how he looked in the direction of traffic, a failure to see cars or headlights in either direction, the alleged absence of any sounding of a horn or other warning (see Vehicle and Traffic Law, § 1154) and also some testimony relative to a double parked ear in the northbound lane. On this record there were questions of fact as to defendant’s negligence and the contributory negligence of the plaintiff. (W artels V. County Asphalt, 291 N Y 2d 372, 379; Lo Giudice v. Riedel, 32 A D 2d 950; Hogeboom v. Protts, 80 A D 2d 618.) Concur — Stevens, P. J., Markewich, Nunez and Tilzer, JJ.