Tosto v. Marra Bros.

Plaintiff was guilty of contributory negligence [687] as matter of law." In view of the testimony of the witnesses to the accident, including plaintiff’s, that defendant’s truck was stopped at the center of the twenty-two foot roadway when plaintiff’s truck was twenty-five to thirty feet away, with nothing between them, plaintiff’s testimony that he looked and did not see the defendant’s truck is incredible as matter of law. (Dolfini v. Erie R. R. Co., 178 N. Y. 1.) The questions of fact have been examined and, in any event, reversal of the judgment as against the weight of the evidence would have been ordered. Johnston, Wenzel and MaeCrate, JJ., concur; Nolan, P. J., and Sneed, J., concur for reversal of the judgment but dissent as to dismissal of the complaint and vote to grant a new trial.