Hunt v. Schultz

21 A.D.2d 743, 250 N.Y.S.2d 378, 1964 N.Y. App. Div. LEXIS 3755

Opinion

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. (Appeal from judgment of Erie Trial Term in favor of plaintiff in an automobile negligence action; also, appeal from order denying motion for a new trial and appeal from order denying motion under Civ. Prac. Act, § 457-a.) Present—■ Williams, P. J., Bastow, Henry, Noonan and Del Veechio, JJ.