dissent in a memorandum by Ross, J., as
follows: The jury instructions as rendered by the trial court were adequate under the circumstances and conveyed to the triers of fact the appropriate standards to be applied. When viewing the charge as a whole, it sufficiently instructs the jury that the applicable test to be employed is the “reasonable prudent man” standard. As the majority of this court notes, the plaintiff failed to object to these instructions nor did she request a charge on “momentary forgetfulness”. However, the trial court did inform the jury that this case was governed by the theories of comparative negligence. It is quite conceivable that in weighing the culpable conduct of both parties, the six jurors were aware that plaintiff could have had a momentary lapse of memory, forgetting that a dangerous condition existed at that intersection. However, this forgetfulness could have been just as easily outweighed by the fact that plaintiff passed this same pothole for the past three years, three times a day, without incident. In any event, the jury was presented with a question of fact which they resolved in favor of the defendant city, which resolution should not now be disturbed (Gross v City of New York, 24 AD2d 751, affd 18 NY2d 830). There is also a *568question whether the plaintiff met her burden to prove that the defect in the roadway caused her to fall. Plaintiff testified that because her foot, which was allegedly caught in the hole, was behind her, she did not see the pothole until she stood up. At that time she assumed that the pothole caused her to trip. It is interesting to note that this pothole is located next to a catch basin, which is covered by an open grate. The jury could have reasoned that this evidence was insufficient to find that the proximate cause of the accident was the defect in the street. “It is settled that a jury verdict in favor of defendant may not be set aside unless it plainly appears that the evidence so preponderates in favor of the plaintiff that the verdict for the defendant could not have been reached on any fair interpretation of the evidence” (Marton v McCasland, 16 AD2d 781, 782; Flynn v City of New York, 35 AD2d 936, affd 29 NY2d 715). Here the evidence does not clearly weigh in favor of the plaintiff and on such a slender reed, this court should not set aside the verdict. In addition, I can find no error with the examples of negligence which the court discussed with the jury. As to the example about a person not checking his car brakes for a period of one year, it must be remembered that this illustration was suggested by the jury and not by the court. The trial court’s response was a mere invitation to the jurors to use their entire life experience to determine whether this omission is symptomatic of negligent conduct. As to the example of unconsciously passing through a stop sign, the juror who requested a clarification of the issue rejected this example outright and was not swayed by the reasoning of the court, since that juror was the sole dissenter on this panel. Under these circumstances, I cannot see how the plaintiff suffered any prejudice at the hands of the trial court and would affirm the judgment.