Opinion
July 11, 1918.
Frederick J. Flynn of counsel [ Alfred W. Andrews, attorney], for the appellant Florence Goldstein.
Milton Mayer of counsel [ Fred H. Rees and Goodman Block with him on the brief], for the appellant Abraham Goldstein.
Mortimer Brenner, for the respondent.
Present — CLARKE, P.J., LAUGHLIN, DOWLING, SHEARN and MERRELL, JJ.
As the front of the automobile passed the injured boy without touching him, according to the testimony of all of the eye-witnesses, considering the testimony of defendants' disinterested witnesses and the probabilities of the case, we are of the opinion that the finding of negligence is clearly against the weight of the evidence. As to the defendant Florence Goldstein there was no evidence upon which liability could be predicated other than her ownership of the car. The undisputed testimony established that at the time of the accident she was in bed at her home and that her husband was operating the automobile for his own purposes.
The judgment is reversed, with costs, and the complaint dismissed as to appellant Florence Goldstein. The judgment against the appellant Abraham Goldstein is reversed and a new trial ordered, with costs to said appellant to abide the event.
Judgment reversed, with costs, and complaint dismissed, with costs as to defendant Florence Goldstein. Judgment as against defendant Abraham Goldstein reversed and a new trial ordered, with costs to said appellant to abide event.