
    William McKittrich and Edward Jerrie, Appellants, v. The New York Edison Company, Respondent.
    First Department,
    May 3, 1940.
    
      Benjamin H. Siff of counsel [Leon Himmelfarbe, attorney], for the appellants.
    
      Harry P. Rodman of counsel [Beardsley & Taylor, attorneys], for the respondent.
   Per Curiam.

Although the trial court was of the opinion that there was no evidence of negligence on defendant’s part contributing to cause the accident, the court submitted to the jury the claim of the plaintiff Edward Jerrie, a passenger in the car who was rather seriously injured, but at the close of plaintiffs’ case dismissed the complaint as to the plaintiff William McKittrich, driver of the car, whose injuries were slight. The jury found in favor of plaintiff Jerrie; the trial court set the verdict aside; both plaintiffs appeal.

The essential issues of fact in relation to defendant’s liability were whether defendant’s employees neglected to place lights and guard rails at an open manhole where they were working at night in the highway, and whether such neglect caused or contributed to cause the accident. The court charged the jury that if the accident resulted from the joint negligence of defendant and the driver of plaintiffs’ car and that the passenger Jerrie was not guilty of contributory negligence, the jury could find a verdict in favor of plaintiff Jerrie, even though they found that the driver’s negligence exceeded defendant’s. The jury so found.

We think there were issues raised requiring the submission of the entire case to the jury. While the jury on the evidence might have properly found that the driver of the car was negligent, that was also an issue of fact for the jury.

The judgment dismissing the complaint as to both plaintiffs should be reversed; the verdict in favor of plaintiff Jerrie should be reinstated, with costs in favor of that plaintiff; the action of plaintiff McKittrich severed, and a new trial ordered, with costs to said appellant to abide the event.

Present — Martin, P. J., Dore, Cohn and Callahan, JJ.

Judgment dismissing the complaint as to both plaintiffs unanimously reversed, the verdict in favor of the plaintiff Edward Jerrie reinstated, with costs in favor of that plaintiff; the action of plaintiff William McKittrich severed, and a new trial ordered, with costs to said appellant to abide the event.  