Carpino v. Baker

Birns, J. (concurring).

I agree with the majority that the matter should be remanded for a new trial. I do not agree with the dissent that a finding of contributory negligence as a matter of law is justified. The issue of contributory negligence is a jury question in all but the clearest cases (MacDowall v Koehring Basic Constr. Equip., 49 NY2d 824). This is not one of the clearest cases (cf., Giambrone v Pan Amer. Airways, 74 AD2d 789). On the appeal from the judgment of the first trial (66 AD2d 201) we concluded that there were factual questions warranting submission to the jury of the…