Opinion
May 8, 1978
In an action to recover damages for personal injuries, etc., arising out of a rear-end automobile collision, plaintiffs appeal from a judgment of the Supreme Court, Queens County, entered May 6, 1977, which is in favor of the defendant and against them, upon a jury verdict. Judgment reversed, on the law, without costs or disbursements, and new trial granted. In our opinion, the trial court erred in refusing to charge the jury, as requested, that under the facts of this case the female plaintiff passenger, who was in the car with her husband, was not guilty of contributory negligence as a matter of law. The only testimony concerning her conduct is that while their car was stopped at a red traffic light, she was observed in conversation with her husband. The accident took place some moments later, after the light had changed; there was no evidence that the plaintiff passenger was speaking with or distracting her husband in any way at that time. No reasonable view of the evidence would support a finding that the plaintiff passenger was guilty of contributory negligence. Martuscello, J.P., Damiani, Shapiro and O'Connor, JJ., concur.