Opinion
September 23, 1974
In an action to recover damages for personal injuries, plaintiffs appeal from a judgment of the Supreme Court, Queens County, entered April 6, 1972, in favor of defendant, upon a jury verdict. Judgment reversed, on the law, and new trial granted, with costs to abide the event. Appellants did not present any questions of fact upon the appeal. Plaintiff's were occupants of a vehicle which stalled in the center lane of a three-lane parkway early on a rainy morning. Their vehicle was struck in the rear by defendant's automobile, resulting in the injuries which form the basis for this lawsuit. The questions of negligence and contributory negligence were close, but the trial court, in its charge to the jury, overemphasized the facts against plaintiffs and failed to review the conflicting evidence as to the location of the impact and the physical condition of the roadway. Gulotta, P.J., Martuscello and Shapiro, JJ.; concur; Hopkins and Latham, JJ., dissent and vote to affirm.