Opinion
December 8, 1952.
Present — Johnston, Acting P.J., Adel, Wenzel, MacCrate and Schmidt, JJ.
In an action to recover damages for personal injuries, suffered when plaintiff's automobile emerged from a private road and collided with another automobile on the public highway, defendant Merritt, Chapman Scott Corp. appeals from so much of a judgment entered on a verdict of a jury in plaintiff's favor and against said defendant and granting the motion of defendant Mt. Vernon Contracting Corp. to dismiss the cross complaint of defendant Merritt, Chapman Scott Corp. against it. Plaintiff appeals from an order denying his motion to set aside the verdict on the ground of inadequacy. Judgment modified on the law and the facts by striking therefrom the first decretal paragraph and by substituting therefor a provision that the complaint be dismissed. As so modified, the judgment, insofar as appeal is taken, is unanimously affirmed, with costs to respondent-appellant. Appeal from order dismissed, without costs. Plaintiff did not give evidence as to the manner in which he drove onto the highway, having testified that he has no memory of the accident. The proof fails to establish negligence on the part of respondent-appellant which caused the collision with the automobile on the highway and fails to establish plaintiff's freedom from contributory negligence.