Opinion
November 19, 1926.
Appeal from Supreme Court of Erie County.
Cohn, Chormann Franchot [ Clarence R. Runals of counsel], for the appellant.
Ward, Flynn, Spring Tillou [ Dana L. Spring and Harold J. Tillou of counsel], for the respondent.
The accident here in question was a head-on collision between an automobile driven by plaintiff's intestate and one of defendant's street cars. The accident happened at night in the middle of a block on a street where defendant had a single track upon which it operated cars in both directions.
Under the evidence and the charge of the court, recovery was predicable solely upon the presence of a red-lighted headlight upon the front end of defendant's car as it approached the automobile.
The proof of the presence of such a light rests entirely on the testimony of one witness who gave evidence that when the car passed him at an intersecting street, at least 150 feet distant from the place of collision, the headlight on the car was red. In view of the testimony that the car was in proper operating condition, that a red light could only be shown as a headlight when the motorman turned the so-called reverse lever into "neutral" position, in which case power could not be transmitted to the wheels to propel the car in either direction, and that no condition occurred which would reasonably influence the motorman to move the reverse lever into neutral position while operating the car on this trip, we are of the opinion that the finding of the jury as to the color of the headlight was contrary to the weight of evidence.
The judgment and order should be reversed on the facts and a new trial granted, with costs to the appellant to abide the event.
All concur. Present — HUBBS, P.J., CLARK, SEARS, CROUCH and SAWYER, JJ.
Judgment and order reversed on the facts and a new trial granted, with costs to appellant to abide event.