Opinion
January 21, 1938.
Action to recover for personal injuries and property damage as a consequence of the claimed collision of the defendant's truck with an automobile operated by plaintiff Henry Volberg and carrying plaintiffs Ryan and Cunningham as passengers. Judgment dismissing the complaint at the close of the plaintiffs' case reversed on the law and a new trial granted, costs to abide the event. The evidence adduced on behalf of the plaintiffs presented a jury question with respect to possible conflicting inferences that might be drawn from so much of the evidence as a jury saw fit to credit. A jury might infer that plaintiff Henry Volberg was the sole negligent cause of the accident by reason of his having prematurely cut in front of the defendant's truck, in which event a verdict for the defendant would ensue; or a jury might infer that the defendant was the sole negligent cause of the accident as a consequence of the manner of its operation of the truck following a prudent and proper cutting in of the Plymouth car in front of it, in which event plaintiffs would be entitled to a verdict; or a jury might find that both the defendant and plaintiff Henry Volberg were negligent, in which event the passenger plaintiffs might be entitled to a verdict. In any event, the defendant should have been put to its proof and upon its failure to adduce any, a submission to the jury should have been had to the end that it might determine which inferences are properly to be drawn from the evidence adduced. ( Hart v. Hudson River Bridge Co., 80 N.Y. 622.) Hagarty, Carswell, Davis, Johnston and Taylor, JJ., concur.