
    Harry C. Dutton, as Executor of Carl Roedelsperger, Deceased, Appellant, v. Daniel Marcone, Doing Business under the Name of Park Taxi Company, et al., Respondents.
   Appeal by plaintiff from a judgment in favor of defendants, entered upon the verdict of a jury, in an action to recover damages for negligence causing the death of the plaintiff’s testate. Judgment reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. In its main charge the court erroneously charged the jury as to the burden of proof upon the question of contributory negligence. While that charge was corrected upon requests to charge, the ultimate result was confusing. In our opinion, the finding implicit in the verdict of the jury that plaintiff’s testate was guilty of contributory negligence or that the driver of the automobile involved in the accident was free from negligence is against the weight of the credible evidence. Close, P. J., Johnston and Aldrich, JJ., concur; Carswell and Lewis, JJ., dissent and vote to affirm.  