Opinion
February 20, 1996
Appeal from the Supreme Court, Bronx County (Lottie Wilkins, J.).
We find that from the evidence herein that it was against the weight of the evidence for the jury to conclude that plaintiff was only 40% responsible for the personal injuries he sustained while crossing in the middle of a major highway and that the van driver was 60% liable ( Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498). From the circumstances present, we determine that the van driver should have been chargeable with only 20% of the fault for plaintiff's injuries and that plaintiff was responsible for 80% of the injuries. Accordingly, we reverse and remand for a new trial unless plaintiff stipulates to accept 20% of the total injuries of $300,000 as found by the jury, or $60,000. If plaintiff so stipulates, then the judgment as amended is affirmed.
The Trial Judge properly charged the jury on comparative negligence as opposed to assumption of the risk. Also, we find in the circumstances that the trial court correctly refused to admit the hospital bill. We note that the jury was fully aware of the extent of plaintiff's injuries through the presentation of other evidence.
Concur — Rosenberger, J.P., Rubin, Ross, Nardelli and Mazzarelli, JJ.