Order reversed and claim dismissed, without costs, upon the ground that the manner in which the automobile was being operated at the time, and not the presence of the utility pole in the grassy area of the shoulder of the highway, was the proximate producing cause of the accident ( Ellis v. State of New York, 16 A.D.2d 727, affd. 12 N.Y.2d 770; Kinne v. State of New York, 8 A.D.2d 903, affd. 8 N.Y.2d 1068).
Concur: Judges DYE, FULD, VAN VOORHIS, BURKE, SCILEPPI and BERGAN. Chief Judge DESMOND dissents and votes to affirm on these grounds: first, that, on this record, it was a question of fact, not law, as to whether the presence of the pole on the shoulder so near the travelled way was one of the proximate causes of the accident ( Sweet v. Perkins, 196 N.Y. 482; Forte v. City of Albany, 279 N.Y. 416); and, second, that this decision is inconsistent with Darling v. Village of Herkimer ( 4 N.Y.2d 1000) where we necessarily held that it was a question of fact not law whether this very pole was a proximate cause of this accident.