Jagiello v. Olin , 390 N.Y.S.2d 296 ( 1976 )

Judgment unanimously affirmed, without costs. Memorandum: Plaintiff commenced this action to recover damages for personal injuries sustained as a result of an automobile accident in which the vehicle he was operating in a southerly direction collided with a northbound farm tractor when the tractor turned left across plaintiff’s lane of travel to enter a field on plaintiff’s side of the road. The court found that defendant was guilty of negligence which was the proximate cause of the accident as a matter of law and so instructed the jury. While recognizing that the issue of contributory negligence was a close one, it declined to instruct the jury that plaintiff was free of contributory negligence as a matter of law. Considering the topography of the road, the time of day and the opportunity to avoid the accident, the question of whether plaintiff exercised reasonable care to avoid the accident was properly left to the jury (see Wartels v County Asphalt Inc., 29 NY2d 372, 379; Nelson v Nygren, 259 NY 71, 76.) (Appeal from judgment of Oneida Supreme Court—negligence.) Present—Moule, J. P., Cardamone, Simons, Mahoney and Dillon JJ.