In an action by the driver of a truck to recover damages for personal injuries alleged to have been received when his truck collided with another truck, owned by Pulchers Motors, Inc., and operated by its employee, Carl Albert Mayo, the appeal is from a judgment entered on a jury verdict for $40,000 in favor of the respondent. Judgment reversed and a new trial granted, with costs to abide the event. In our opinion the verdict is contrary to and against the weight of the evidence. Each driver testified that the collision occurred on his proper side of the road. Apart from the conflict raised by the testimony, the verdict discloses that there was a disregard of the physical facts as indicated by the photographs and the scale drawing. Such facts indicate that respondent’s negligence contributed to the accident, and that his injuries were not caused solely by negligence of the appellant driver.
Nolan, P. J., Ughetta and Hallinan, JJ., concur; Beldoek and Klein-feld, JJ., dissent and vote to affirm the judgment, with the following memorandum: In our opinion the evidence substantiates the verdict of the jury.