
    Mary Joyce, Now Mary J. Morey, as Limited Administratrix of the Estate of Bruce Joyce, Deceased, Appellant, v Estate of Peter Boyer et al., Respondents.
    (Appeal No. 1.)
   Judgment and order unanimously affirmed, without costs. Memorandum: This is a wrongful death action involving a rear-end collision between two tractor trailers on Interstate Highway 81 north of Syracuse. Plaintiff’s intestate seeks to recover upon the theory that the accident was caused when decedent Boyer pulled his vehicle onto the highway from the shoulder directly into the path of the vehicle which plaintiff’s intestate was driving. A jury trial was held in Supreme Court, Livingston County, and a verdict in plaintiff’s favor was returned. The court, however, set the verdict aside pursuant to CPLR 4404 on the ground that proof of negligence on the part of decedent Boyer was insufficient as a matter of law, and it directed entry of judgment dismissing the complaint. We agree. Following a previous trial of this case we held that a similar jury verdict in plaintiff’s favor was contrary to the weight of the evidence (Joyce v Estate of Boyer, 46 AD2d 727; Caledonia Lines v Estate of Boyer, 46 AD2d 728). The record of the second trial shows nothing which would justify a different conclusion at this time (Blum v Fresh Grown Preserve Corp., 292 NY 241). In fact at the second trial there was no proof of negligence whatsoever, since the lone eyewitness to the accident unequivocally stated that when decedent Boyer pulled onto the highway, he was one-half mile ahead of the vehicle driven by plaintiff’s intestate. (Appeal from judgment and order of Livingston Supreme Court—wrongful death.) Present—Marsh, P. J., Moule, Simons, Dillon and Goldman, JJ.  