(dissenting). I dissent and vote to affirm on the ground that the testimony of Mrs. Retse as to how the accident occurred is not incredible. A jury may well have found that, as a relatively new and inexperienced driver, she exercised all the care and skill that one in similar circumstances would and should have exercised, and that consequently Mrs. Retse was free from contributory negligence. We cannot say that it was incredible that the drifting of the Bohack truck over into the oncoming lanes of traffic, or that its position, did not create a reasonable “ threat of immediate peril ”. Defendant Bohack failed to except to the refusal of its request to charge. This failure to except, in view of the main charge, did not put the Trial Justice on sufficient notice, especially since the request related solely to applying the principles of the main charge to the specific facts in proof. Uo error is assigned to the main charge in this respect.
Peck, P. J., Dobe and Bergan, JJ., concur with Callahan, J.; Bbeitel, J., dissents and votes to affirm in opinion.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event. [See post, p. 803.]