Opinion
June, 1935.
Action to recover damages for personal injuries sustained by plaintiff when the car in which she was riding, owned by defendant Mary K. Tomich and operated by the other defendant, left the highway and collided with a tree. Appeal from a judgment for plaintiff in the sum of $7,721.03. Judgment reversed on the law and a new trial granted, costs to abide the event, for error in the charge of the court at folios 512 and 513, with reference to the applicability of the doctrine of res ipsa loquitur. ( Galbraith v. Busch, 267 N.Y. 230.) Plaintiff's claim of negligence was that the driver of defendant's car took his hands from the wheel while lighting a cigarette, thus causing the accident. Defendants denied this and claimed that the driver of defendant's car was forced off the road by another car. That was the issue and the doctrine of res ipsa loquitur was not involved. Lazansky, P.J., Young, Hagarty, Carswell and Scudder, JJ., concur.