Gatto v. Elmore

¶1In an action to recover damages for personal injuries, defendant appeals from an interlocutory judgment of the Supreme Court, Queens County, entered May 1, 1970, in favor of plaintiff on the issue of liability only, upon a jury verdict. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The questions of fact have not been considered. In our opinion the proof concerning the possibility of an alternate safe route which plaintiff might have used was so unclear that a fair determination of that question could not be made by the jury. Hence, this record is inadequate for a proper determination of the issue of contributory negligence; and a new trial should be had. Latham, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.