Opinion
April 4, 1949.
Action to recover damages as the result of a collision of an automobile and a Diesel-operated railway motorcar. Order, and judgment entered thereon, reversed on the law and a new trial granted, with costs to appellant to abide the event. Whether or not respondent gave warning of the approach of its train to the crossing was a material issue in the case. ( Flynn v. Long Island R.R. Co., 289 N.Y. 283, 286.) The positive testimony of Washenko, the only survivor of the accident, that no whistle or horn was sounded by the train and no bell was ringing, disputed by respondent's witnesses, presented an issue of fact. "The court having directed a verdict, the appellant is entitled to the most favorable inferences deducible from the evidence, and all disputed facts are to be treated as established in her favor." ( McDonald v. Metropolitan St. Ry. Co., 167 N.Y. 66, 68.) Determination of this conflict of testimony and of the credibility of the witnesses who gave it should not have been taken from the jury. ( McDonald v. Metropolitan St. Ry. Co., supra, p. 70; Sadowski v. Long Island R.R. Co., 292 N.Y. 448, 454; Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 245; Paley v. New York Central R.R. Co., 297 N.Y. 1017.) Johnston, Acting P.J., Sneed and MacCrate, JJ., concur; Adel and Wenzel, JJ., dissent and vote to affirm.