In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered December 19, 1975, which, after a jury trial, is in favor of defendant and against him. Judgment reversed, on the law, and new trial granted, wdth costs to abide the event. No contention has been raised with regard to the sufficiency of the evidence. The trial court erred in charging the jury on the possibility of an emergency situation being present. There were no facts presented at the trial upon which the jury could find that defendant was responding to an emergency situation (see Demme v Elmer J. Fogerty, Inc., 47 AD2d 851). Margett, Rabin, Titone and Hawkins, JJ., concur; Latham, Acting P. J., dissents and votes to affirm the judgment.