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WARTELS v. COUNTY ASPHALT

36 A.D.2d 394 (1971)

David E. Wartels, Appellant, v. County Asphalt, Inc., et al., Respondents, et al., Defendant

Appellate Division of the Supreme Court of the State of New York, First Department.

May 11, 1971.

Attorney(s) appearing for the Case

Herman J. McCarthy of counsel (Richard E. Coven with him on the brief; Stern & Reubens, attorneys), for appellant.

John Nielsen of counsel (Craig & Geen, attorneys), for County Asphalt, Inc., respondent.

Frank B. Gass of counsel (Robert E. Dowd with him on the brief), for Ritangela Construction Corporation and another, respondents.

STEVENS, P. J., and STEUER, J., concur with EAGER, J.; NUNEZ, J., dissents in opinion, in which KUPFERMAN, J., concurs.

EAGER, J.

The record in this action to recover for personal injuries sustained in a highway accident is completely void of any proof of facts or circumstances supporting an inference that plaintiff exercised due care. Consequently, the trial court properly dismissed plaintiff's complaint.

"It is a fundamental principle in the law of this state that, in an action for personal injury based on the negligence...

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