Opinion
November 18, 1938.
Plaintiffs' intestate, riding in defendant's automobile, was killed when the car struck a pole or stanchion at the intersection of Ocean parkway and Avenue Z, in the borough of Brooklyn. At the time of the collision the car was being operated by a stranger, defendant, the owner, being in the rumble seat. Plaintiffs' intestate was in the front seat, with another passenger between him and the driver. The appeal is from a judgment dismissing the complaint at the close of plaintiffs' case. Judgment affirmed, with costs. No opinion. Lazansky, P.J., Hagarty, Davis and Adel, JJ., concur; Taylor, J., dissents and votes for reversal and a new trial upon the ground that the proofs presented issues of fact for the jury upon the question of liability, this case being plainly distinguishable from Galbraith v. Busch ( 267 N.Y. 230), in which an automobile suddenly swerved from and left the highway. The case at bar involved the striking of a traffic stanchion in the highway.