Wahrhaftig v. Berberich

¶1Plaintiff appeals from an order directing the dismissal of his complaint, following the disagreement of the jury The complaint was dismissed upon the ground that under the authority of Hudson v. Church of Holy Trinity (250 N. Y. 513) plaintiff’s testimony shows him to be guilty of contributory negligence as a matter of law. This court feels that under the authority of Hyde v. Maison Hortense, Inc. (252 N. Y. 534) a question of fact is presented as to contributory negligence. Order and judgment reversed, on the law, with costs to abide the event, and a new trial granted. Hill, P. J., Crapser, Bliss and Heffernan, JJ., concur; Schenek, J., dissents, upon the authority of Hudson v. Church of Holy Trinity (250 N. Y. 513).