Wolf v. F. Murphy Storage Corp. , 258 A.D. 817 ( 1939 )

Order setting aside the verdict of a jury in a negligence action and dismissing the complaint, and judgment, in so far as appealed from, affirmed, with costs. We are of opinion that the plaintiff did not establish a prima facie cause of action. Granting plaintiff the most favorable inferences from the testimony, nothing more was established than that the respondent’s car was struck by a passing truck, due to the shifting of the load of lumber on the truck at the time. Lazansky, P. J., Hagarty, Johnston and Close, JJ., concur; Carswell, J., dissents as to affirmance of the order and votes to modify it by striking out the second decretal paragraph and, as thus modified, to affirm; and further dissents as to affirmance of the judgment, and, in so far as appealed from, votes to reverse and grant a new trial. (Plumb v. Richmond Light & R. R. Co., 233 N. Y. 285.)