Opinion
October 1, 1954.
Present — Vaughan, J.P., Kimball, Piper, Wheeler and Van Duser, JJ.
Judgment and order reversed on the law and facts, without costs of this appeal to any party, and complaint dismissed, without costs. Memorandum: The proof in this record clearly shows that the decedent drove the Buick car owned by his wife from a driveway into the path of the truck driven by the defendant Anthony; that Anthony was driving at a speed of forty or forty-five miles per hour; that when he saw the headlights of the car Anthony sounded his horn and when he realized that decedent was continuing to drive onto the paved portion of the highway he applied the brakes and swerved to the left. On those facts we can find no act of omission on the part of Anthony which constituted negligence. On this record we think it was error for the court to charge subdivision 1 of section 67 Veh. Traf. of the Vehicle and Traffic Law. If we could hold that there was any negligence on the part of Anthony, we would be required to set aside the verdict of the jury as against the weight of evidence on the question of the contributory negligence of the decedent. All concur, except Wheeler, J., who concurs as to the reversal but votes for granting a new trial. (Appeal from a judgment for plaintiff in an automobile negligence action. The order denied a motion for a new trial.)