| N.Y. App. Div. | Apr 24, 1939
In an action brought to recover damages for personal injuries and for injury to plaintiff’s automobile as the result of a collision between two automobiles at a street intersection, judgment of the County Court of Nassau county, in so far as it dismisses the complaint as against defendant Fay Stillman, reversed on the law and the facts and a new trial ordered, with costs to appellant to abide the event. On this record the issues of negligence and contributory negligence were for the jury. Plaintiff’s testimony that she looked to the right and failed to see defendant’s automobile was not incredible as matter of law under the circumstances presented here. The accident occurred after dark at the intersection of two roads lined with trees. There was no proof as to the existence or location of street lights. Plaintiff’s testimony cannot fairly be construed as an admission that the headlights of defendant’s car were lit, and the only evidence that they were lit was that of Charles Stillman, Jr., an interested witness. Such cases as Dolfini v. Erie R. R. Co. (178 N.Y. 1" date_filed="1904-03-04" court="NY" case_name="Dolfini v. . Erie R.R. Co.">178 N. Y. 1) are clearly distinguishable on the facts. Hagarty, Carswell, Adel, Taylor and Close, JJ., concur.