DALTON v. TOMASELLO


36 A.D.2d 631 (1971)

Theodore Dalton Jr., et al., Appellants, v. Peter Tomasello, Respondent

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

February 16, 1971


Judgment reversed, on the law, and new trial granted, with costs to abide the event.

The questions of fact have not been considered. When the evidence is considered most favorably to plaintiffs, it establishes a prima facie case. It cannot be said as a matter of law that by no rational process could a jury find plaintiff Dalton free from contributory negligence. Questions of weight and credibility are for the jury to resolve (Stevens v. Clark,

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