(dissenting).
To establish defendant’s liability, plaintiff’s evidence must show that the truck' driver, McArthur, owed plaintiff a duty not to do the act which caused the damage — in this case, the duty not to proceed to a point where his truck struck the wire. As Cardozo, J., said in Palsgraf v. L. I. R. R. Co., 248 N. Y. 341, 344, 162 N. E. 99, 100, 59 A. L. R. 1253: “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation ; it is risk to another or to others within the range of apprehension.” Unless the truck driver should have seen the sagging wire, there was no apparent risk of injuring any one by proceeding past the end of the bus before stopping to help pull it onto the road. There is no duty to stop when a man flags an automobile driver unless some danger from continuing on is apparent. Bush v. Goodno, 233 App. Div. 152, 251 N. Y. S. 271, affirmed by New York Court of Appeals, 182 N. E. 171, April 26,1932. The trial judge charged that McArthur probably did not see the wire, for it was night and the wire was above his cab; he also charged that he was under no duty to look out for overhead wires, and that, “when he started to go past the bus, he had no reason to know what kind of danger, if any, he was running into.” If he had no reason to know that he was running into a position dangerous to the plaintiff, clearly he was not under any duty to the plaintiff to stop his progress. The only thing which could possibly warn him of any danger was the signals and shouts of plaintiff and Gotts-ehalk. The shouts of “low wire” he could not hear because of the noise of his own truck. The signals meant to him that the men wanted help in getting the bus back on the road. It is a harsh doctrine to let the jury say he should have understood them as indicating a sagging wire which he could not see. But, even if we assume that he should have so understood them, he owed the plaintiff no duty to avoid hitting the wire unless a reasonably prudent driver would have apprehended that hitting it would endanger the plaintiff. There was nothing to create such an apprehension in McArthur’s mind. Neither the plaintiff himself nor Gottsehalk foresaw any danger to the plaintiff.
This was an unfortunate accident, and-the immediate cause of it was defendant’s truck, but I fail to see any breach of duty to the plaintiff in having the truck where it came into contact with the wire. Moved by very natural sympathy, the jury has east the burden *719of plaintiffs misfortune upon a defendant innocent of fault. In my opinion, defendant’s motion for a directed verdict should have been granted.