Ender v. Kehoe

Judgment unanimously reversed on the law and facts and new trial granted, with costs to abide the event. Memorandum: On a dark and rainy night plaintiff was struck by defendant’s eastbound automobile while he was walking west on his left side of the highway pavement. He testified that he does not remember events after he started under a railroad bridge which was more than 60 feet east of where he was hit. “ The burden of proof on *1045the issue of contributory negligence is not shifted by plaintiff’s loss of memory.” (Davis v. Rogers Fuel Corp., 284 App. Div. 1024, 1025; Karonis v. Palmietto, 281…