Opinion
June 6, 1949.
Present — Carswell, Acting P.J., Johnston, Adel, Sneed and Wenzel, JJ.
In an action to recover damages for the wrongful death of plaintiff's intestate and for conscious pain and suffering, the only evidence as to the manner of the happening of the accident was that the first time the driver or any of the other three persons on defendants' truck saw decedent was after they felt the truck bump or lurch in the air and, upon looking back, found decedent lying in the roadway about twenty feet in the rear of the truck. At the close of plaintiff's case the complaint was dismissed on the ground that there was no proof that decedent was ever in front of the truck or within the vision of its driver. ( Scanlon v. Temple, 297 N.Y. 516.) Judgment unanimously affirmed, with costs. Assuming that the evidence was sufficient to justify an inference that decedent was struck by the truck owned by defendant Bilous and operated by defendant Coteaux, it is not sufficient to justify a further inference that the contact was due to the negligence of the operator of the truck. ( Wieland v. Third Ave. Tr. Corp., 296 N.Y. 1047.)