Opinion
May 21, 1964
Appeal from the Erie Trial Term.
Present — Williams, P.J., Bastow, Henry, Noonan and Del Vecchio, JJ.
Judgment and orders unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The verdicts in favor of each of these plaintiffs are totally irreconcilable and inconsistent. Contributory negligence is conduct on the part of a plaintiff which falls below the standard to which he should conform for his own protection (Restatement, Torts, § 463). Where, as here, there is one accident and a continuous course of conduct on the part of a driver of a vehicle, a jury determination that that driver violated a duty to another of necessity includes a finding that the same driver violated the duty owed to himself for his own protection.