Opinion
February 19, 1940.
Action to recover damages for personal injuries sustained by the infant plaintiffs, for loss of services and expenses by their mother, and for the death of the intestate, Michael Duffy, in an automobile accident. At the time of the accident the decedent was driving his automobile, in which the infant plaintiffs were passengers, in a westerly direction on Shore Road, Brooklyn. Two cars, owned by defendant Healey, were being driven, one behind the other, in an easterly direction on the same road. Healey's chauffeur, Ciremella, drove the first car, and another of his chauffeurs, Manning, followed with the second car. It is alleged that the car driven by Ciremella collided with decedent's car, causing it to veer across the road and collide with defendant Healey's second car, driven by Manning. Judgment has been entered on the verdict of a jury in favor of the plaintiffs and against the three defendants. As to defendants Healey and Ciremella, the owner and operator, respectively, of the first car, the judgment and the order, in so far as appealed from, denying defendants' motion to set aside the verdict and for a new trial, are affirmed, with costs.
As to defendant Ciremella, employee of defendant Healey, driving the first car, and defendant Healey, I am of opinion that the jury's verdict is against the weight of the evidence in its implication (1) that Ciremella was guilty of negligence in operation, and (2) that plaintiff's intestate was free from contributory negligence in the operation of his car. As to defendant Manning, judgment and order, in so far as appealed from, reversed on the law and the facts, with costs, and complaint dismissed on the law, with costs, on the ground that no negligence in the operation of the car driven by Manning was shown. Lazansky, P.J., Hagarty and Taylor, JJ., concur; Carswell and Adel JJ., dissent and vote to affirm the judgment and the order in so far as appealed from.