
    Tom Toscano, Appellant, v. John H. Meyerhoefer, Respondent.
   Action to recover damages for personal injuries suffered by plaintiff, a pedestrian, when struck by defendant’s automobile. Judgment, dismissing the complaint on the merits, reversed on the law and the facts and a new trial granted, with costs to abide the event, on the ground that questions of fact were presented which should have been submitted to the jury for determination. (Cf. Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1, 7, and Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241.) Nolan, P. J., Carswell, Sneed, Wenzel and Mac-Crate, JJ., concur.  