Opinion
Argued April 8, 1971
Decided April 21, 1971
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, EDWARD J. GREENFIELD, J.
Benjamin H. Siff for appellant.
William F. Larkin and John J. Wrenn for respondent.
Order reversed and a new trial granted, with costs to abide the event. It cannot be said that plaintiff was guilty of contributory negligence as a matter of law (see Nelson v. Nygren, 259 N.Y. 71, 76). A new trial, however, is appropriate (Cohen and Karger, Powers of the New York Court of Appeals, § 176).
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON.