Schwartz v. Kraft , 1937 N.Y. App. Div. LEXIS 5379 ( 1937 )

While riding as a guest passenger in an automobile, the plaintiff, then an infant, sustained personal injuries resulting from a collision between the automobile and wooden horses surrounding an excavation in the highway under repair. The record indicates that there were no lights or warning signs on the obstruction, and that the driver was negligent. In this action to recover damages the trial justice dismissed the complaint at the end of the plaintiff’s case on the ground that plaintiff was guilty of contributory negligence. Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. As the record stands, the question of plaintiff’s contributory negligence was one of fact that should have been submitted to the jury. (Nelson v. Nygren, 259 N. Y. 71, 75, 76.) Hagarty, Davis, Adel, Taylor and Close, JJ.,' concur.