(dissenting.) Plaintiff came in contact with the rear door of defendant’s car at a point above the right rear wheel as the exhibits indicate; no part of the front of the car came in contact with plaintiff. The testimony of plaintiff’s witness Engel was very much weakened on cross-examination. The issues as to defendant’s negligence and plaintiff’s contributory negligence Were so close that the error of the court in charging the jury with regard to defendant’s failure to call his two daughters should be considered prejudicial. (Milio v. Railway Motor Trucking Co., 257 App. Div. 640.) The issues were for the jury but on this record we consider the verdict is against the weight of the credible evidence.
The judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.
Martin, P. J., concurs.
Judgment affirmed, with costs,