Opinion
December, 1934.
Present — Lazansky, P.J., Young, Carswell, Scudder and Davis, JJ.
Action to recover damages for personal injuries sustained by the plaintiff when the car in which she was riding, owned by defendant Kathryn Mentzinger and operated by her son, the other defendant, collided with a railroad structure on a public highway. Appeal from judgment in plaintiff's favor. Judgment unanimously affirmed, with costs. Appellants' main point is that, on the facts presented by the complaint and the bill of particulars, plaintiff's own negligence contributed to the accident as a matter of law in that, by being a party to the undue crowding of the front seat of the car, she helped to create the condition which obstructed the driver's view, that she interfered with his control of the driving mechanism, that she failed to protest or to warn him against excessive speed, and that she rode in the car knowing that the driver was under the influence of liquor. The claim that plaintiff was chargeable with contributory negligence as a matter of law was not made by defendants at any time during the trial and no mention of it was made by the court in charging the jury. The court merely charged that plaintiff, to prevail, must show that the driver was negligent, that she was free from contributory negligence, and that, as a guest in the automobile, she was bound to conduct herself as an ordinarily prudent person would in like circumstances. This carried the question of contributory negligence to the jury as one of fact. Furthermore, at the close of the case defendants' counsel did not make any request to charge on the point now urged. By failing to do so, he conceded that whether plaintiff was chargeable with contributory negligence was a question of fact for the jury. The point, therefore, cannot now be raised with effect on this appeal.