Orwat v. Smetansky

¶1Judgment insofar as it granted an award in favor of plaintiffs against the defendant Edward Kawecki and order unanimously reversed on the law and facts and complaint dismissed, and otherwise judgment affirmed, without costs, of these appeals to any party. Memorandum: The evidence is clear that each of the plaintiffs was aware of and understood the dangers inherent in unloading a truck parked in a public highway at 7:30 p.m. Although the defendant Edward Kawecki may have been negligent in parking the truck in the highway the contributory negligence of the plaintiffs precludes recovery by them. (Mignery v. Gabriel, 2 A D 2d 218, affd. 3 N Y 2d 1001.) (Appeal from part of judgment of Erie Trial Term dismissing complaint as to defendant Smetansky; appeal by defendant Kawecki from same judgment in favor of plaintiffs in an automobile negligence action; appeal from order denying motion for a new trial.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecehio, JJ.