Opinion
February 26, 1940.
In an action for damages for personal injuries, defendant appeals from a judgment for plaintiff, entered on a jury verdict, and from an order denying defendant's motion to set aside the verdict and for a new trial. Judgment reversed on the law and the facts, with costs, and complaint dismissed on the law, with costs. Appeal from order dismissed, without costs. Plaintiff failed to prove facts sufficient to constitute a cause of action in that she failed to establish negligence on the part of the defendant. Her version of the happening is incredible as a matter of law. Johnston, Adel and Taylor, JJ., concur; Lazansky, P.J., concurs as to reversal of the judgment, but dissents as to the dismissal of the complaint and the dismissal of the appeal from the order and votes to reverse the order and grant the motion for a new trial; Close, J., dissents as to the reversal of the judgment, the dismissal of the complaint, and the dismissal of the appeal from the order, and votes to affirm the judgment and order on the ground that a question of fact was presented for determination by the jury.