(dissenting). I dissent and vote to affirm. As I read this record, the circumstances surrounding the happening of the fatal accident justified the trial court in submitting the controverted issues to the jury for its determination. The charge to the jury was adequate and the proof was such that a jury was justified in drawing an inference that the car was being operated by its owner, the decedent Swagler. Furthermore, there is undisputed evidence that the death car, after leaving the high-way, made a path through the field measuring 177 feet, broke several natural obstacles, uprooted a tree and when it finally came to rest, was completely demolished — “ sheared right in half ”. True, there were no eyewitnesses but taken together such circumstances were enough to support the inference implicit in the jury verdict that the death car was being operated by the decedent Swagler in a negligent and careless manner. All findings of fact, implicit in the jury verdict, having been unanimously affirmed in the court below, are not open for our review.
The judgment should be affirmed, with costs.
Conway, Ch. J., Desmond, Fuld, Van Voobhis and Bubke, JJ., concur with Fboessel, J.; Dye, J., dissents in an opinion.
Judgments reversed, etc.