
    Rosa L. Snipes, Individually and as Administratrix of the Estate of Willis Snipes, Deceased, Appellant, v. Edward McQuade et al., Respondents.
   In a negligence action to recover damages for wrongful death and conscious pain and suffering of plaintiff’s intestate and for personal and property injuries sustained by plaintiff, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered November 2, 1970, in favor of defendants, upon a jury verdict, after a trial on the issue of liability. Judgment reversed, on the law ■and in the interests of justice, and new trial granted, with costs to abide the event. The appeal did not present questions of fact. In our opinion, the trial court committed reversible error in instructing the jury that, if they found that the Snipes automobile was on the roadway and not on the shoulder when ■ the accident happened, their verdict must be for defendants (cf. Bossman v. La Grega, 28 N Y 2d 300, 308-309). We think a question of fact remained for the jury on the issue of contributory negligence even though they found the Snipes car to have been on the roadway (Waterfall v. Taylor, 35 A D 2d 619). Hopkins, Acting P. J., Munder, Martuscello, Gulotta and Brennan, JJ., concur.  