Opinion
January 27, 1943.
Present — Crosby, P.J., Cunningham, Dowling, Harris and McCurn, JJ.
Judgment and order reversed on the facts and a new trial granted, with costs to the appellants to abide the event. Memorandum: The judgment rests upon a verdict that is against the great weight of the evidence. The photographic exhibits, which, according to the admission of plaintiff's principal witness, correctly showed the positions of the two vehicles immediately after the accident, render it impossible to accept the plaintiff's theory as to how the accident happened. That theory is that plaintiff's truck was practically at a standstill, on its own side of the road, and parallel with the line of the road; that it was struck by defendant's car traveling forty miles an hour; that, in order to avoid the collision, plaintiff's driver turned to the right; and still the cars came to rest with plaintiff's truck over on its wrong side of the road with defendant's car pushed backward completely off the road on its own proper side. Furthermore, a disinterested witness, a State Trooper, gave undisputed testimony that the skid marks of plaintiff's truck were all on its wrong side of the road and that the skid marks of defendant's car were on its proper side of the road. All concur. (The judgment is for plaintiff in an automobile negligence action. The order denies a motion for a new trial.)