Opinion
May 2, 1945.
Present — Taylor, P.J., Dowling, McCurn, Larkin and Love, JJ.
Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: Upon the plaintiff's proof and particularly the testimony as to the failure of the wigwag signals to operate, we think there was sufficient to take the case to the jury. ( Carr v. Pennsylvania R.R. Co., 225 N.Y. 44; Elias v. Lehigh Valley R.R. Co., 226 N.Y. 154; Hand v. Delaware, Lackawanna Western R.R. Co., 267 App. Div. 1037, affd. 293 N.Y. 845.) All concur, except Love, J., who dissents and votes for affirmance. (The judgment dismisses the complaint at close of plaintiff's case in an action for damages for personal injuries arising out of a collision between an automobile and a freight train.)