Opinion
November 30, 1938.
Present — Sears, P.J., Crosby, Lewis, Taylor and Dowling, JJ.
Judgment affirmed, with costs. Memorandum: The plaintiff offered proof entirely circumstantial to establish defendant's negligence but in our opinion the proof offered lacks sufficient cogency to warrant a submission of the question of negligence to the jury. Even if the jury found that the defendant in the exercise of care should have seen the approaching car in which the plaintiff's intestate was riding as a passenger, still the evidence is insufficient to show any careless conduct on the part of the defendant resulting in the accident, judging his actions as those of a driver who knew and appreciated the fact that the other car was approaching. All concur, except Dowling, J., who dissents and votes for reversal on the law and a new trial on the ground that it was for the jury and not the court to draw the inferences from the established facts. (The judgment dismisses the complaint in an automobile negligence action.)