Opinion
May 27, 1938.
Judgments dismissing the complaints on the merits at the close of the plaintiffs' case reversed on the law and a new trial granted, with costs to appellants to abide the event. We are of opinion that, upon the facts established, the questions of negligence and contributory negligence should have been submitted to the jury. ( Metzger v. Cushman's Sons, Inc., 243 N.Y. 118, and Shuman v. Hall, 246 id. 51.) Hagarty, Carswell and Close, JJ., concur; Lazansky, P.J., concurs as to plaintiff Williams. He dissents as to plaintiff Boles and votes to affirm as to him, on the ground that he was negligent as matter of law. Johnston, J., dissents as to both plaintiffs, on the ground that the negligence of plaintiff Boles was the sole cause of the accident.