(dissenting). Upon the testimony of the witnesses and all of the surrounding circumstances, the court should have found that the operator of the automobile in which the deceased was riding should have seen the light from the flashlight waved by Sergeant Chaplinski, and in the exercise of reasonable care should have and could have avoided running into and colliding with the parked truck, and that the failure to provide lights on the rear of the last truck into which the automobile in which claimant was riding had collided, was not the cause of the accident.
It is well settled that when an ordinance or statute for the protection or benefit of individuals prohibits the doing of acts or imposes a specific duty, the neglect to obey the prohibition or to perform the duty is some evidence of negligence to be considered in an action brought by one for whose protection the statute was enacted, to recover for any injuries of the character which it was designed to prevent, proximately produced by such disobedience or neglect. (Carlock v. Westchester Lighting Co., 268 N. Y. 345, 349.)
There must be causal connection between the neglect or failure to have the rear light on the truck in compliance with the statute, and the happening of the accident. The absence of a rear light on the parked truck, in violation of a statute, was some evidence of negligence; it was not conclusive; it is only prima facie sufficient, of negligence contributing to the result of the accident.
Under the circumstances what more could any reasonable person have done than to signal approaching automobiles with a flashlight as was done by Sergeant Chaplinski? The rear fight on the truck could have served no other purpose than did the fight from
*898the flashlight. In fact, the moving flashlight, in all probability, was a better warning than a stationary light hanging on the rear of the truck. In the case of Martin v. Herzog (228 N. Y. 164, 170) Judge Cahdozo, writing for the court, said: “ If nothing else is shown to break the connection, we have a case, prima facie sufficient, of negligence contributing to the result. There may indeed be times when the lights on a highway are so many and so bright that lights on a wagon are superfluous. If that is so, it is for the offender to go forward with the evidence, and prove the illumination as a kind of substituted performance.” The State did go forward with such evidence and proved that the waving of the flashlight by Sergeant Chaplinski was a kind of substituted performance and in compliance with the statute respecting lights on the rear of the parked truck. The testimony of the witnesses on that subject is of such probative force as to overcome any finding that the failure to provide the rear light on the truck was the proximate cause of the accident.
“ We must be on our guard, however, against confusing the question of negligence with that of the causal connection between the negligence and the injury. A defendant who travels without lights is not to pay damages for his fault unless the absence of lights is the cause of the disaster. * * * 1 Proof of negligence in the air, so to speak, will not do.’ (Pollock Torts [10th ed], p. 472) (Martin v. Herzog, supra, p. 170.)
Accordingly I dissent and vote for a dismissal of the claim herein.