Newton v. Pacific Highway Transport Co.

(dissenting) — The majority’s conclusion that the question of contributory negligence was for the jury is based entirely upon the testimony of a state patrol officer whose testimony is quoted.

The testimony of experts based upon hypothetical questions cannot create an issue. In re Stern’s Estate, 244 N. Y. Supp. 250, affirmed, 261 N. Y. 617, 185 N. E. 762; In re Stern’s Will, 256 N. Y. Supp. 54, 235 App. Div. 60.

I contend that there was no evidence in this case which could be the basis upon which to predicate the hypothetical question. In this connection, it is proper to note that hypothetical…