Upon the record before us, a factual issue was presented with respect to whether plaintiff was contributorily negligent. In our view, this issue should have been submitted to the jury and not have been decided as a matter of law.
Plaintiff testified that because of the manner in which the Conway car was being operated he had difficulty in passing it; that after he stopped for the red light he went back to Conway’s car, which was directly behind his, to see whether Conway was ill. He walked back between the cars and the 12-inch solid double yellow line and was never in the northbound lane; after the door was opened it did not extend over the double yellow line. While standing still and talking to Conway, without any warning of oncoming traffic, the door was struck by the Van Schoonhoven car.
Conway testified, among other things, that the door was not opened to its full extent; that his car was from 15 to 18 inches from the yellow line and that the accident happened so fast that he could not see exactly whether the door extended over the double line. In his motor vehicle report he stated that at the time of the impact it was obvious that the Van Schoonhoven car was riding on the double yellow line. He also testified that he observed her car riding on the double yellow, line.'
Van Schoonhoven testified that she never saw anybody open the door, never saw anybody in the roadway and first observed plaintiff after she had struck the door. In her opinion the door was one-half over the double line.
The court in its charge pointed out that there was a conflict in the testimony on the important issue whether the Van Schoonhoven vehicle crossed the solid double line. It said: ‘‘ Did she cross the line? There is a dispute here. ” It also charged: “If you find after examining all of the facts and circumstances that both the action of Mr. Conway opening the door and Mrs. Van Schoonhoven in the operation of her car were negligent and caused the accident and there was freedom from contributory negligence on the part of the plaintiff, then both Van Schoon*219hoven and Conway are to be held responsible for the damages to the plaintiff ”, The effect of this charge was completely nullified and the jury became confused when the court also charged that if the jury found that there was no collision between Conway and Arrigo then, ‘ ‘ I charge you as a matter of law that the developing situation involving the plaintiff Arrigo is contributory negligence and this bars him from recovery against either Van Schoonhoven or Conway in the second accident. ’ ’ An exception was duly taken to this portion of the charge.
The fact that the jury returned for further instruction is an indication that it was confused by the main charge. It asked the court, “ If we find there is no first accident, would this rule out the cause of action in the second accident? ” The court then instructed the jury that “asa matter of law if there was no collision in the first accident, then there would be no cause of action in any of the causes of action.” This was reversible error (see Miller v. Hine, 281 App. Div. 387).
The majority take the position that this instruction was proper because “ plaintiff’s presence on the highway without explanation was contributory negligence as a matter of law.” The record indicates, however, that plaintiff’s presence on the highway could have been the result of plaintiff’s belief that the Conway car had struck the rear of his car or the fact that the Conway car had been weaving on the highway before plaintiff passed it, leading plaintiff to believe that there was something wrong with the driver of that car. When asked what was the purpose of getting out of his car, plaintiff replied: “ Mainly I wanted to see if the gentleman was all right. Under the circumstances I didn’t know whether he would be ill or whatever the case may be.”
Under the facts and circumstances shown in the record the jury could have found that the door of Conway’s car did not extend beyond the double line, that plaintiff was standing on his own side of the highway and therefore not in a position of danger. If the jury so found, then plaintiff was not negligent since he did not create a dangerous condition for cars properly traveling in a northerly direction. Furthermore, he is not bound to anticipate that anyone is going to disobey the law and had the right to assume that a northbound car would not violate rules of the road by crossing the double solid yellow line. (Pecora v. Marique, 273 App. Div. 705; see, also, Pfaffenbach v. White Plains Express Corp., 17 N Y 2d 132.) The court properly charged that pursuant to the provisions of the Vehicle and Traffic Law Van Schoonhoven was obligated to stay on her side of the double line. Upon all the proof the jury could find that the negligent act of defendant Van Schoonhoven in crossing the dou*220ble line and going onto her wrong side of the highway was the sole proximate cause of the accident (Wilday v. King, 33 A D 2d 970).
Whether or not a collision occurred between Conway and plaintiff, we conclude that whether plaintiff unreasonably exposed himself to foreseeable danger is a matter of fact and not a matter of law. ‘ ‘ The question of contributory negligence ordinarily is a question of fact. It is only when there is no dispute upon the facts and only one conclusion can be drawn therefrom that it may be decided as a question of law.” (Nelson v. Nygren, 259 N. Y. 71, 76).* In Wilday v. King (supra, pp. 971-972) the court said: “ The questions of negligence and contributory negligence were questions of fact to be determined by the jury as well as the question of credibility of the witnesses since the weight attributed to their testimony was also for the jury’s determination.” (see, also, Swensson v. New York, Albany Despatch Co., 309 N. Y. 497).
The cases relied on by the majority are clearly distinguishable on the facts. In each case it was undisputed that the injured plaintiff was in defendant’s lane of traffic and exposed himself to. foreseeable danger which contributed to the happening of the accident.
For the above reasons the judgment should be reversed on the law and a new trial granted in the action against defendant Van Schoonhoven with costs to appellant to abide the event.
Marsh, J., concurs with Moule, J.; Cardamons, J., concurs in a separate opinion; Del Vecchio, J. P., dissents and votes to reverse on the law and grant a new trial in an opinion in which Gabrielli, J., concurs.
Judgment affirmed, with costs.
See Bossman v. La Grega, 28 N Y 2d 300, decided Apr. 21,1971.