Sparks v. City of New York

Appeal by plaintiff from so much of a judgment of the Supreme Court, Kings County, entered March 7, 1968, as is in favor of defendant City of New York against plaintiff upon the trial court’s direction of a verdict in favor of defendants. Judgment reversed insofar as appealed from, on the law, and new trial granted as between plaintiff and the City of New York, with costs to abide the event. No questions of fact were considered. We are of the opinion that the evidence adduced at the trial was sufficient to raise a triable issue of fact as to plaintiff’s contributory negligence and that it was error to direct a verdict in respondent’s favor. Whalen v. Citizens’ Gas Light Co. (151 N. Y. 70) is not to the contrary. Woolfolk v. Eisenberg (215 N. Y. S. 2d 941) and Venia v. Bartel (11 Misc 2d 501) are not controlling, since the accidente *661therein did not occur on a public sidewalk, upon which a pedestrian may walk, indulging in a presumption that it is safe. Christ, Acting P. J., Brennan, Benjamin, Munder and Martuseello, JJ., concur.