Opinion
February 15, 1962
Appeal from the Genesee Trial Term.
Present — Bastow, J.P., Goldman, Halpern, McClusky and Henry, JJ.
Judgment and order denying motion for a new trial unanimously reversed on the law and facts, without costs of this appeal to any party, and a new trial granted. Orders denying motion for a nonsuit and for a directed verdict unanimously affirmed, without costs. Memorandum: The finding, implicit in the jury's verdict, that plaintiff was free from contributory negligence, is against the weight of the evidence. The circumstantial evidence by which plaintiff attempted to prove that the traffic control light was green for traffic on Genesee Street (on which he was traveling) when he entered the intersection where the accident occurred, was insufficient to overbalance the testimony of defendant and a disinterested witness, each of whom testified that the traffic-control signal was red against Genesee Street traffic when plaintiff entered the intersection.