Opinion
January 27, 1947.
In an action to recover damages for personal injuries sustained by plaintiff, a pedestrian, when he was struck by an automobile operated by defendant while plaintiff was crossing a public highway, judgment in favor of defendant, entered upon a dismissal of plaintiff's complaint at the end of plaintiff's case, reversed on the law, and a new trial granted, with costs to appellant to abide the event. On the record presented, the trial court erroneously held that plaintiff was guilty of contributory negligence as a matter of law. (Cf. Knapp v. Barrett, 216 N.Y. 226.) Although plaintiff made contradictory statements on direct and cross-examination, the conflict of evidence resulting from such statements should have been resolved by the jury. ( Ochs v. Woods, 221 N.Y. 335; Lee v. City Brewing Corporation, 279 N.Y. 380.) The motion to dismiss should not have been granted, since there was some evidence in the record which, if credited by the jury, would have sustained a conclusion that defendant was negligent and that plaintiff exercised due care for his own protection. (Cf. African Metals Corp. v. Bullowa, 288 N.Y. 78.) Lewis, P.J., Carswell, Adel and Nolan, JJ., concur; Aldrich, J., deceased.