Upon the trial of this action to recover damages for the death of plaintiff’s infant son, alleged to have resulted from the negligence of defendant, plaintiff was entitled, upon a motion made at the close of plaintiff’s case to dismiss his complaint, to the benefit of the most favorable inferences dedueible from the testimony. So tested, plaintiff’s evidence established a prima facie case, though the proof was circumstantial in . nature. This prima facie case was not destroyed by the existence of possible inconsistencies in the testimony given by plaintiff’s witnesses.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Untermyer, Dore, Cohn and Callahan, JJ., concur; Martin, P. J., dissents and votes to affirm.
Judgment reversed upon question of law and a new trial ordered with costs to the appellant to abide the event.