
    Stanislaw Dumanski, as Administrator, etc., of Mary Dumanski, Deceased, Respondent, v. Anthony Stradone and Others, Individually and as Copartners Doing Business under the Firm Name and Style of V. & W. Taxi Service, Appellants.
    Third Department,
    January 16, 1929.
    
      Charles R. Watson [Charles E. Hardies of counsel], for the appellants.
    
      Leary & Fullerton [Walter A. Fullerton and Edward W. Barrett of counsel], for the respondent.
   Per Curiam.

Plaintiff has recovered for the death of his wife, which the jury found was caused by the negligence of defendants taxicab driver. Plaintiff’s own testimony is that while his wife was alighting from the taxicab, it suddenly lurched forward throwing her upon her back on the pavement. Death resulted from inflammation of the lining of the skull, induced by a fracture of the floor thereof. The location of the fracture is not proven. Under plaintiff’s theory, decedent could only have received an injury to the back of her head. The sole abrasion was upon the forehead just above the nose. This location agrees with the testimony of the taxicab driver that decedent alighted safely, walked to a ditch in the highway, over which she was being assisted by her husband, when she fell forward striking her forehead upon the ground. Plaintiff’s daughter, a child of tender years, was sworn but her evidence after the cross-examination added nothing to plaintiff’s side of the case. The issue of fact was solely between the plaintiff and the taxicab driver, with the objective evidence markedly in favor of the defendants. The verdict was against the weight of evidence.

The judgment should be reversed on the facts and a new trial granted, with costs to abide the event.

Van Kirk, P. J., Whitmyer and Hill, JJ., concur; Hinman and Hasbrouck, JJ., dissent.

Judgment reversed on the facts and new trial granted, with costs to the appellants to abide the event.  