Behar v. Surface Transportation Corp.

Upon the trial of this action to recover damages for the death of plaintiff’s infant son, alleged to have resulted from the negligence of defendant, plaintiff was entitled, upon a motion made at the close of plaintiff’s case to dismiss his complaint, to the benefit of the most favorable inferences dedueible from the testimony. So tested, plaintiff’s evidence established a prima facie case, though the proof was circumstantial in . nature. This prima facie case was not destroyed by the existence of possible inconsistencies in the testimony given by plaintiff’s witnesses.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Untermyer, Dore, Cohn and Callahan, JJ., concur; Martin, P. J., dissents and votes to affirm.

Judgment reversed upon question of law and a new trial ordered with costs to the appellant to abide the event.