Opinion
March 11, 1963
In an action to recover damages for injury to person and property sustained by plaintiff when his automobile struck the rear of defendant's truck while the truck was parked in the right-hand lane of the northbound side of Cross Island Parkway, in Queens County, plaintiff appeals from a judgment of the Supreme Court, Queens County, entered November 9, 1960 after a jury trial, in favor of the defendant, dismissing the complaint as a matter of law at the end of plaintiff's case. Judgment reversed on the law, and a new trial granted, with costs to plaintiff to abide the event. Upon this record, granting to the plaintiff every favorable inference to which he is presently entitled by reason of the dismissal of the complaint at the end of his case ( Sagorsky v. Malyon, 307 N.Y. 584, 586; De Wald v. Seidenberg, 297 N.Y. 335, 336-337), we are of the opinion that jury questions were presented as to defendant's negligence and plaintiff's freedom from contributory negligence. Plaintiff having made out a prima facie case, it was error to dismiss the complaint as a matter of law. Beldock, P.J., Ughetta, Christ and Rabin, JJ., concur; Hill, J., dissents and votes to affirm the judgment on the ground that the plaintiff failed to prove any negligence on the part of the defendant.