Calico v. Phillips

63 A.D.2d 955, 405 N.Y.S.2d 490, 1978 N.Y. App. Div. LEXIS 12001

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 1978
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Suffolk County, entered July 22, 1977, which is in favor of defendants, upon the trial court’s dismissal of the complaint at the close of plaintiffs case, at a jury trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. No questions of fact were considered. Plaintiff testified that before crossing the road in the middle of the block, he observed defendants’ vehicle at a distance of approximately 150 to 200 feet. He could not estimate the speed of the vehicle. An eyewitness stated that plaintiff was standing on the yellow line in the middle of the roadway at the time of the collision. He also recounted that immediately after the accident, the defendant driver told him that he had not seen the plaintiff. The facts in this case are "on all fours” with the facts in Lo Guidice v Riedel (32 AD2d 950), where we held that a jury could properly find that "if defendant had been sufficiently vigilant and careful, he would have seen plaintiff in time to avoid injuring him.” The jury should have been permitted to decide if the defendant driver was, in fact, negligent. Martuscello, J. P., Shapiro, Cohalan and Hargett, JJ., concur.