Opinion
January 11, 1943.
Present — Hagarty, Carswell, Adel, Taylor and Close, JJ.
Consolidated action brought to recover damages for personal injuries. Plaintiffs appeal (1) from an order granting motions of respondents Garnerville Holding Corp., Inc., and Sanco Piece Dye Works, Inc., to set aside verdicts of a jury in plaintiffs' favor, dismissing the complaints as to said respondents, and granting other relief; and (2) from that part of a judgment dated February 13, 1941, which dismisses plaintiffs' complaints as to Capitol Piece Dye Works, Inc., and John K. Curran; and (3) from a judgment dated May 24, 1941, dismissing plaintiffs' complaints as to Garnerville Holding Corp., Inc., and Sanco Piece Dye Works, Inc., and adjudging that said judgment, and the judgment dated February 13, 1941, in so far as it relates to plaintiffs and defendants Capitol Piece Dye Works, Inc., and John K. Curran, shall together constitute the judgment in this action. Judgment dated February 13, 1941, in so far as appealed from, unanimously affirmed, with one bill of costs to respondents Capitol Piece Dye Works, Inc., and John K. Curran, payable by plaintiffs. In our opinion the verdict in favor of the defendants Capitol Piece Dye Works, Inc., and John K. Curran, and against the plaintiffs, upon the issue of negligence in the operation of the Mack truck owned and operated by said defendants, implicit in which verdict is a finding that there was no such negligence, is amply supported by evidence. Order setting aside verdicts in favor of plaintiffs and against respondents Garnerville Holding Corp., Inc., and Sanco Piece Dye Works, Inc., and vacating part of the judgment dated February 13, 1941, entered on said verdicts, and the judgment entered on said order, reversed on the law, the motions denied, and that part of the judgment dated February 13, 1941, which was vacated and cancelled is reinstated, with one bill of costs to appellants, payable by respondents Garnerville Holding Corp., Inc., and Sanco Piece Dye Works, Inc. In our opinion the learned trial justice erred in his ultimate ruling that plaintiffs were guilty of contributory negligence as matter of law in entering, in the Dodge truck, that section of the roadway obscured by steam coming from the adjoining plant of respondent Sanco Piece Dye Works, Inc. The question as to such alleged negligence on the part of each plaintiff was one of fact for the jury. ( Palmer v. Dearing, 93 N.Y. 7; Peil v. Reinhart, 127 N.Y. 381; Brown v. Wittner, 43 App. Div. 135; Morrissey v. Smith, 67 App. Div. 189; Lee v. Ingraham, 106 App. Div. 167; Leshinsky v. Cohen, 262 App. Div. 775; Romano v. Home Owners' Loan Corp., 263 App. Div. 743; Pietraszewski v. American Railway Express Co., 210 App. Div. 866; Frost v. McCarthy, 200 Mass. 445; Waring v. Dubuque Elec. Co., 192 Iowa, 508; Alitz v. Minneapolis St. L.R. Co., 196 Iowa, 437; Marsh v. Burnham, 211 Mich. 675.) The authorities upon which respondents rely to support their thesis that there was contributory negligence as matter of law on the part of plaintiffs ( Heaney v. Long Island R.R. Co., 112 N.Y. 122; Spila v. New York Central H.R.R.R. Co., 147 App. Div. 666; Warren v. State of New York, 219 App. Div. 124; O'Neill v. Chatham Phenix Nat. Bank Trust Co., 242 App. Div. 511, affd. 267 N.Y. 622; Jones v. State of New York, 256 App. Div. 856; Czesznek v. Ruffy Corp., 259 App. Div. 302), when each is examined and considered in the light of its peculiar facts, are not in conflict with our indicated ruling in this phase, which is in line with a modern judicial tendency to hold that the question of contributory negligence is for the jury.