Defendant's driver testified that the deceased was slumped over the steering wheel but raised his head and stared at him, and was not permitted to testify to what occurred after that on the ground it was equally within the knowledge of the deceased. In this ruling the court assumed that fact, and I think it was error. The court should have left that question to the jury and should have instructed the jury not to consider the evidence if found to have been equally within the knowledge of the deceased.
The judgment should be reversed and a new trial granted, with costs to defendant.
CHANDLER and BUTZEL, JJ., concurred with WIEST, J. The late Justice POTTER took no part in this decision. *Page 411