March 27, 1950.
In an action to recover damages for personal injuries alleged to have been caused by defendant's negligence, judgment, entered upon the dismissal of the complaint at the close of testimony at a trial before a jury, reversed upon the law and the facts and a new trial granted, with costs to appellant to abide the event. In view of the dismissal of the complaint, the proven facts must be viewed in the light most favorable to the plaintiff, and we must give to the plaintiff the benefit of every inference which may reasonably be drawn from those facts in determining whether a cause of action has been proved. ( Betzag v. Gulf Oil Corp., 298 N.Y. 358, 362, and cases cited.) So viewed, this record presents an issue of fact whether plaintiff's injuries were occasioned by actionable negligence of defendant, which must be determined by a jury.
The complaint was properly dismissed. The plaintiff repeatedly stated that he did not know how the accident came about. His only other witness as to the occurrence testified that while the plaintiff stood at the center of the rear of his truck, about to push some merchandise thereon, he was struck by the mudguard of the defendant's Mack truck but that the said Mack truck did not strike the plaintiff's truck, and stopped almost immediately six inches from and parallel to the plaintiff's truck, with its front at least four and one-half feet beyond the tailboard of the said truck. It was a physical impossibility for the accident to have happened in this fashion. If the plaintiff stepped backward into the defendant's truck as it was passing, which is the only other possibility presented by the evidence, the negligence which brought about the happening of the accident was his.