Ender v. Kehoe

29 A.D.2d 1044, 289 N.Y.S.2d 869, 1968 N.Y. App. Div. LEXIS 4320

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 4, 1968
• Status: Published

Opinion

Judgment unanimously reversed on the law and facts and new trial granted, with costs to abide the event. Memorandum: On a dark and rainy night plaintiff was struck by defendant’s eastbound automobile while he was walking west on his left side of the highway pavement. He testified that he does not remember events after he started under a railroad bridge which was more than 60 feet east of where he was hit. “ The burden of proof on the issue of contributory negligence is not shifted by plaintiff’s loss of memory.” (Davis v. Rogers Fuel Corp., 284 App. Div. 1024, 1025; Karonis v. Palmietto, 281 App. Div. 687, affd. 305 N. Y. 898.) The finding implicit in the verdict that plaintiff complied with the provisions of section 1156 of the Vehicle and Traffic Law by moving as far to the left as was practicable upon the approach of defendant’s vehicle is against the weight of the evidence. (Appeal from judgment of Monroe Trial Term, in automobile negligence action.) Present— Bastow, J. P., Goldman, Del Veeehio, Marsh and Henry, JJ.