Opinion
May 9, 1951.
Appeal from Supreme Court, Otsego County.
The complaint is cast in negligence. Plaintiff was a passenger in an automobile owned and operated by appellant. While this car was being operated on a State highway, known as Route 51, in the town of Morris, Otsego County, it collided with another automobile driven by the defendant, Adams. Beyond the fact of the collision there is no proof in the record as to how or why the accident happened. The position of the cars in the highway at the time of the collision was not even shown. The trial court granted the motion of the defendants Adams to dismiss the complaint as to them, but denied appellant's motion to dismiss the complaint and for a directed verdict. Errors in the Trial Justice's charge would require a reversal in any event, but we can find no ground for granting a new trial. The facts shown created no presumption of negligence on the part of appellant, and the case is otherwise devoid of any proof of negligence. Judgment reversed on the law and facts and the complaint dismissed, without costs. This court has considered the facts. We affirm the finding that plaintiff was free from contributory negligence. We do not affirm the finding that the defendant was guilty of actionable negligence. Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ., concur.