James v. Tseng

Order of the Appellate Term, First Department, entered on April 7, 1970, reversing a judgment of the Civil Court, in plaintiffs’ favor, after a jury trial, and dismissing the complaint herein, unanimously reversed, on the law, and the judgment of the Civil Court of the City of New York, New York County, entered on November 4, 1968, in plaintiffs’ favor, is reinstated. Plaintiffs-appellants shall recover of defendant-respondent $50 costs and disbursements of this appeal. In view of the conflicting testimony in the record, questions of fact were presented to the jury involving the degree of visibility, the exact place on the highway where the accident occurred and whether the location was devoid of any shoulder in the immediate area which would prevent the plaintiffs from moving their cars off the highway. It was solely the jury’s responsibility to decide whether, upon all the evidence in the case, the plaintiffs were guilty of any contributory negligence and its verdict should *825not have been disturbed. There was no request by the defendant for the trial court to charge, under sections 1200 and 1201 of the Vehicle and Traffic Law and the defendant cannot now raise that issue. (Chapman v. Thirty-Ninth St. Realty Corp., 26 A D 2d 806.) Concur — Capozzoli, J. P., McGivern, Nunez, McNally and Macken, JJ.