Judgment in favor of Felipe Morales and Louis Morales unanimously reversed on the facts and the law, and the complaint, insofar as these plaintiffs are concerned, dismissed, with $50 costs against them, and judgment in all other respects affirmed. Plaintiffs Felipe and Louis Morales were among several passengers in defendant Saralequi’s automobile. Saralequi was driving on the Brooklyn-Queens Expressway after dark on a rainy evening. He stopped the car alongside the island that separates the east and westbound traffic, in order to fix a tire.
He sent one of his passengers, Alberto Morales, back along the roadway with a flashlight to warn oncoming traffic. Louis and Felipe went with their brother and stood on the island. After some moments, Louis and Felipe decided to see if Saralequi needed any help. They left their position on the island and proceeded to walk in the roadway, with their backs to the oncoming traffic. While so doing, they were struck by the defendant Rothlce’s ear, which almost immediately thereafter struck the Saralequi car.
The action of plaintiffs Louis and Felipe Morales in walking in the roadway of a very busy highway with their backs to the oncoming traffic on a dark and rainy evening when there was a safe arid convenient means of reaching their destination was negligence as a inatter of law. That this negligence contributed to the happening of the accident is indisputable. Settle order on notice. Concur — Rabin, J. P., McNally, Eager, Steuer and Witmer, JJ.