Opinion
March 22, 1954.
Action by plaintiff Susan Zaccardo to recover damages for personal injuries, and by her husband for medical expenses and loss of services. Plaintiff wife claims that, about 5:30 P.M. on February 12, 1948, she was walking on a sidewalk in Queens County, which was dangerous, unsafe, and impassable because of its icy condition; that she was compelled by reason of the condition of the sidewalk to leave it and to walk in the roadway, which was also icy and dangerous; that the condition of the sidewalk and the roadway was the result of failure to remove snow and ice therefrom which had accumulated from the snowstorm of December 26, 1947, and other snowfalls between that date and the date of the accident; that, while walking in the roadway, she fell and sustained injuries. The complaint was dismissed at the close of plaintiffs' case on the grounds that defendant was not guilty of negligence and that plaintiff wife was guilty of contributory negligence as a matter of law. Judgment reversed on the law and new trial granted, with costs to appellants to abide the event. In our opinion, defendant's negligence and plaintiff wife's contributory negligence were questions of fact which required submission to the jury. Nolan, P.J., Wenzel, Schmidt and Beldock, JJ., concur; Adel, J., dissents and votes to affirm the judgment on the ground that there is no proof in the record showing negligence on the part of the defendant which caused the accident.