Plaintiff, while driving his automobile westbound on the New York State Thruway, collided with a tractor-trailer which was straddling the roadway in the process of making a U-turn. The accident occurred at 8:00 a.m. on the morning of September 22, 1966. Plaintiff had left his home in New York City at 2:30 a.m. to keep a 10 o’clock appointment in Syracuse. The point of accident was 233.6 miles from the New York City line and the distance from New York City to Syracuse is 283 miles. The speed limit at the place of the accident was 65 miles per hour. The westbound portion of the Thruway consisted of two lanes of traffic, each 12 feet wide and a right shoulder of about 6% feet. The distance from the front of the tractor-trailer to the rear of a low-boy attached to it was approximately 45 feet. The plaintiff was alone in his automobile. The only witnesses present at the scene of the accident were the plaintiff, defendant William Bobb, the driver of the tractor-trailer and defendant Hurley McDougall, employed by defendant County Asphalt, Inc., as a flagman.
Bobb testified that he pulled the tractor-trailer to the far right-hand shoulder of the westbound lane and waited for McDougall *398to signal him across. He also looked in his rear-view mirror and saw the road clear. Both testified they were able to see to an overpass 1,500 feet to the east. Robb started to cross when McDougall signalled him to do so. McDougall testified that before he waved Robb across he looked toward the east and saw no traffic approaching; that he looked to the east once more as Robb started to cross but did not look to the east again prior to the accident. He did not see plaintiff’s car until after the crash. The weather on the morning of the accident was described by McDougall and Robb as “ raining ”, “sprinkling ”, “ kind of misty” and “hazy”. Plaintiff’s automobile struck the left rear of the trailer and bounced under the tractor where it burst into flames.
The jury rendered a verdict in favor of plaintiff against all defendants in the sum of $250,000. The trial court thereafter granted defendants’ motions to dismiss the complaint upon which motions the court had reserved decision. Plaintiff claimed that as a result of the accident he suffered severe brain injuries causing retrograde amnesia and a complete loss of memory with respect to the accident. In its opinion dismissing the complaint the court said: “It appears uncontradicted that the plaintiff is suffering as a result of the unfortunate automobile accident which is the subject of this litigation from retrograde amnesia from which he may never recover. ’ ’
The record on appeal consists of an abbreviated appendix which does not contain the court’s charge. We learn from the briefs, however, that the jury was instructed that since the plaintiff was suffering from amnesia as a result of the accident, his obligation to establish his lack of contributory negligence was lessened as to the quantum of proof pursuant to the rule enunciated in Noseworthy v. City of New York (298 N. Y. 76). Apparently no exception was taken to that charge.
In setting aside the verdict and dismissing the complaint, the trial court found that plaintiff had offered no proof of his freedom from contributory negligence. In my view the trial court erred by ruling, in effect, as a matter of law that Robb and McDougall had actually looked to the east before the tractor-trailer proceeded to cross the Thruway, and that when these two witnesses looked, there was no car in sight as far as they could see. The record contains inconsistencies and mutually contradictory statements by these two witnesses. Their credibility was for the jury and not for the court as a matter of law. The defendants’ negligence is clear. Plaintiff’s freedom from contributory negligence was a question of fact for the jury to *399determine from all the facts surrounding this accident and the inferences reasonably to be drawn therefrom.
At the point of accident the New York Thruway is a high speed limited access expressway. A driver using the Thruway would not reasonably expect to come upon a 45-foot tractor-trailer straddling the roadway. If plaintiff’s memory had not been affected, and he had testified that due to the impaired visibility and the sudden start of the tractor-trailer across the roadway he was unable to avoid the collision although he did everything possible to avoid the accident, it would be clear that his own negligence or freedom therefrom would be for the jury. His disability to testify leaves it to the jury to draw such inferences relevant to plaintiff’s negligence or freedom therefrom as the jury might see fit to draw. See Townley v. Bagby Transfer Co. (19 A D 2d 757 [3d Dept., 1963]) wherein in an almost identical case the Trial Term dismissed the complaint and the Appellate Division reversed and ordered a new trial.
In Schechter v. Klanfer (28 NY 2d 228), plaintiff and his companion, both 14 years of age, were involved in a motorboat collision. The plaintiff was operating his father’s boat across a lake. His companion sat in the front seat to the left of the plaintiff. The passenger testified that the night was clear and moonlit, that the boat’s lights were on, and that the plaintiff was taking a straight course at about 4 miles an hour. The passenger looked to her right and saw a motorboat some 50 feet distant heading towards them, its bow out of the water. About one second later, the other boat operated by the defendant struck the Schechter boat near the driver’s seat. She estimated that the defendant’s boat was traveling at 30 miles an hour, the speed limit on the lake was 10 miles an hour. Plaintiff testified, but not as to the accident, claiming that as a result of the accident he had no memory of the events and had suffered amnesia due to brain damage. The trial court refused to charge the Noseworthy rule. There was a verdict in favor of the defendant. The Appellate Division affirmed. In reversing the Appellate Division and ordering a new trial, the Court of Appeals stated in part (p. 231): “In Schafer v. Mayor of City of N. Y. (154 N. Y. 466, 472), a wrongful death action antedating the statutory shift in burden of proof on contributory negligence in wrongful death cases, the rule was applied to plaintiff’s burden on contributory negligence. Although the plaintiff had called eyewitnesses, the court explained that only plaintiff’s decedent could have testified that he had seen the danger and had sought to avoid it. Plaintiff Schechter’s case is similar: at issue is the degree of proof needed to meet plaintiff’s burden on contributory negligence; an eyewit*400ness, Alice Stone, was called; and only Robert Schechter could have testified, if he were capable, whether he saw the KLanfer boat and tried to avoid it. ’ ’
In the case at bar two eyewitnesses, Robb and McDougall, were called and only the plaintiff could have testified if he were capable, whether he saw the tractor-trailer and sought to avoid it. I would reverse the judgment dismissing the complaint and reinstate the jury’s verdict.
Stevens, P. J., and Steuer, J., concur with Eager, J.; Nunez, J., dissents in opinion, in which Kupferman, J., concurs.
Judgment, Supreme Court, New York County, entered on July 8, 1970, affirmed. Respondents shall recover of appellant $50 costs and disbursements of this appeal.