Manning v. Dale Engineering Co.

240 A.D. 749

Opinion

Per Curiam.

On this record there is insufficient proof that appellant or either of his truck drivers had actual or constructive notice that these trucks had east any stones at any time, and the finding of negligence in appellant is against the weight of the evidence. Under the circumstances, there is no basis for a conclusion that such a mishap as that which resulted in injuring plaintiff Jessie L. Manning was within the reasonable apprehension of appellant. All concur, except Thompson, J., who dissents and votes for affirmance. Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. [See post, p. 756.]