Coffin v. Cunningham

— Judgment unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: Upon the trial a sharp issue of fact was presented as to how far into the highway defendant had backed his automobile from a driveway, as the tractor trailer in which the plaintiff was a passenger came down the highway. The testimony of the witness Mathous, who came upon the scene shortly after the accident, as to his observations of tire marks in new fallen snow in the highway and running to a vehicle parked in the driveway was admissible. The trial court erred in striking this testimony after the receipt thereof. It was for the jury to evaluate the testimony and draw such inferences as might be proper from the proven facts. (Appeal from judgment of Jefferson Trial Term for defendant for no cause of action in an automobile negligence action.) Present — Williams, P. J., Bastow, Halpern, McClusky and Henry, JJ.