Savage v. Evans

46 A.D.2d 979, 362 N.Y.S.2d 289, 1974 N.Y. App. Div. LEXIS 3259

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 1974
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, entered January 25, 1974 in Broome County, upon a verdict of no cause of action. On the morning of March 3, 1972, a snowstorm was in progress in the Village of Endicott, New York, and the plaintiff was proceeding in a southerly direction on foot along Lincoln Avenue to her work in an Endicott department store. Claiming that the sidewalk was too slippery, she entered upon the side of the roadway itself and was walking with traffic approximately two or three feet from the westerly curb when she was struck from behind by an automobile operated by the defendant. As a result, this action was instituted and the jury returned the verdict of no cause of action noted above. On this appeal, the plaintiff argues solely that the jury verdict and the judgment entered thereon were against the weight of the evidence. We find plaintiff’s reasoning to be unpersuasive. At the time of the mishap, she was clearly in violation of the statutory rule that sidewalks should be utilized wherever possible and, otherwise, pedestrians should proceed on the left side of the roadway facing traffic (Vehicle and Traffic Law, § 1156). On this basis alone, there was ample support for the jury’s determination because a question of fact was presented as to whether the plaintiff’s conduct constituted contributory negligence, and the jury was justified in returning a verdict of no cause of action even though there was evidence of negligence on the part of the defendant (Caloro v. Smith, 273 App. Div. 927, affd. 298 N. Y. 808; Encyclopedia N. Y. Auto. Law, § 2202). Judgment affirmed, without costs. Herlihy, P. J., Greenblott, Cooke, Main and Reynolds, JJ., concur.