SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 7, 1969
FRANK LO GIUDICE, APPELLANT,
BENEDICT RIEDEL, RESPONDENT
In a negligence action to recover damages for personal injury, plaintiff appeals from a judgment of the Supreme Court, Suffolk County, entered November 22, 1968 in favor of defendant, upon the trial court's dismissal of the complaint at the end of plaintiff's case upon a jury trial.
Christ, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.
No questions of fact were considered. Plaintiff testified that before crossing in the middle of the block he observed defendant's automobile 200 feet away and traveling towards him at approximately 30 miles an hour. The automobile continued at this same rate of speed until it struck plaintiff before he reached the walk on the other side of the street. Plaintiff stated that defendant failed to sound any warnings prior to the accident. In our opinion, the issues with respect to plaintiff's contributory negligence and defendant's negligence were questions of fact for the jury. We are unable to say that a jury could not properly find that, if defendant had been sufficiently vigilant and careful, he would have seen plaintiff in time to avoid injuring him (see Moebus v. Herrmann, 108 N. Y. 349, 352; Baker v. Close, 204 N. Y. 92, 95; Vehicle and Traffic Law, § 1154). Moreover, the fact that a pedestrian is struck by a vehicle while attempting to cross in the middle of the block will not, of itself, constitute contributory negligence so as to bar his action for personal injuries (see Moebus v. Herrmann, supra ; Knapp v. Barrett, 216 N. Y. 226, 230; Rettegi v. Gremelsbacker, 29 A.D.2d 650).
Judgment reversed, on the law, and new trial granted, with costs to abide the event.
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