dissents and votes to reverse the judgment and order a new trial, with the following memorandum, in which Krausman, J., concurs: I respectfully disagree with the majority. The trial court’s failure to charge the jury on the issue of the plaintiffs comparative negligence was error requiring a new trial. I do, however, agree with the majority that the verdict was excessive under all of the circumstances.
On the evening of November 26, 1989, the plaintiff, returning home from a wedding at approximately 3:45 a.m., was driving on the Brooklyn Queens Expressway eastbound, when one of his tires blew out, causing his vehicle to spin and then come to a stop perpendicular to the guardrail and straddling the left and middle lanes. It was misty and dark. A stranger stopped to help him within 5 to 10 minutes later. After another 10 minutes elapsed, the plaintiff flagged down a passing police car that was transporting a prisoner to Brooklyn Central Booking. The police officer stopped the patrol car about 20 feet ahead of the plaintiffs car, in the center lane, with its multicolored turret and four-way hazard lights turned on. The operator of the police car testified that he was unable to stop the car sooner, i.e., behind the plaintiffs car, and that stopping it in front of the plaintiff’s vehicle was the safest option as it was unsafe to back the police car into oncoming high-speed traffic. Further, the police car’s lights would be most visible from that point and the prisoner, who had to remain guarded, would be more secure. The operator policeman exited the patrol car while the other police officer remained in the car guarding the prisoner.
The police officer then removed flares from the trunk and placed one by the disabled car. The officer took the remaining flares and set them up between the plaintiffs disabled car and the oncoming traffic about 150 feet from the disabled car. The officer placed the flares at intervals from the first flare to the disabled car, the farthest being approximately 150 feet from the car on a crest of a rise in the road where it would be most visible. As the officer was walking back to the radio car accompanied by the plaintiff, the officer instructed the plaintiff, *271for safety, to stand down the road from the disabled car rather than in the front of the car. The officer testified that he then heard the high pitch of a car engine racing over the top of the hill and he turned around and yelled back to the plaintiff to get out of the way as he and the plaintiff started running down the roadway. The officer then saw the vehicle driven by the defendant Legget come over the top of the hill, starting to slide, wheels locked, engine racing. The vehicle slid, the flares came down, and the vehicle hit the disabled car pushing it against the plaintiff, coming to rest some 20 feet past the disabled car. During the time the vehicle was disabled and the flares were being placed, a number of cars drove past the scene without incident.
The plaintiff’s theory of negligence against the defendant City of New York was that the police officer departed from accepted and established police practice concerning, inter alia, the placement of the patrol car behind the disabled car, the placement of the flares at an inadequate distance from the disabled car, and the failure to place the plaintiff in a position of safety. The trial court, notwithstanding the patrolman’s direction to the plaintiff not to stand in front of the car, refused to permit the jury to consider the plaintiffs comparative negligence to which the defendant City took exception. The jury returned a verdict in the plaintiffs favor, apportioning the defendant City’s liability at 60% and the defendant Legget’s liability at 40% ascribing no fault to the plaintiff.
It has been determined that instruction on the question of comparative negligence should be given to the jury where there is a valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion of negligence on the basis of the evidence presented at trial (see, Cohen v Hallmark Cards, 45 NY2d 493, 499). Contributory negligence should not be charged if there is no evidence or insufficient evidence to support it (see, Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 517).
The jury, as the trier of the facts, is charged with the responsibility of drawing fair inferences from the evidence presented. As this Court stated in Louise B. G. v New York City Bd. of Educ. (143 AD2d 728, 730), “[i]t is well settled that the question of contributory or comparative negligence is almost always a question of fact and primarily a jury function”. What is required is comparison of “conduct which, for whatever reason, the law deems blameworthy, in order to fix the relationship of each party’s conduct to the injury sustained and the damages to be paid by the one and received by the other as *272recompense for that injury” (Arbegast v Board of Educ., 65 NY2d 161, 168). In the instant case, I submit that there is a valid line of reasoning that could rationally support a finding of comparative negligence.
Here, the plaintiff failed to follow the safety instructions of the police officer and, as there was a dispute as to whether the plaintiff asked the police officer for a flare to place in the road, the failure to charge the issue of the plaintiff’s comparative negligence was particularly inappropriate. The jury could, from the facts presented, infer that the plaintiff was negligent in disregarding the police officer’s instructions by placing himself directly in harm’s way rather than by assuming a position of safety as he was instructed to do. Since the trial court, in denying the defendant City’s request for a charge on comparative negligence, effectively directed a verdict on this issue in favor of the plaintiff, it deprived the defendant City of the opportunity to have the triers of the facts draw whatever inferences they could from the evidence presented. It was, therefore, error to fail to charge the jury on the issue of comparative negligence.
In addition to the error of the trial court in failing to charge comparative negligence, I would reverse on the additional ground that the 60-40% apportionment of liability was against the weight of the credible evidence. It was conceded by all present at the accident scene, with the exception of the defendant Legget, that the flares were in place and the patrol car’s dome lights and hazard lights were operating when the accident occurred. The Legget vehicle was heard with a racing engine coming over the top of the hill at a fast pace in inclement weather on a slippery roadway when it struck down the flares and hit the disabled car. In my view, under all of the circumstances, to assign only 40% liability to the defendant Leg-get was against the weight of the credible evidence and requires a new trial.