Caloro v. State of New York

280 A.D. 854, 113 N.Y.S.2d 332

Opinion

—Appeal from a judgment of the Court of Claims dismissing the claim. Claimant’s husband was killed by a motor vehicle while walking on a State highway, passing around a pile of sand which had been placed by the State on a path running parallel to the highway. The Court of Claims has found the State negligent by obstructing the walk, but has dismissed the claim on a factual finding of the contributory negligence of the decedent. The decision in respect of contributory negligence is not against the weight of evidence as we view the facts and is consistent with the verdict of a jury on a previous trial which was affirmed on appeal {Caloro v. Smith, 273 App. Div. 927, affd. 298 N. Y. 808). Judgment affirmed, without costs. Heffernan, Brewster, Bergan and Coon, JJ., concur; Poster, P. J., concurs for the additional reason that negligence on the part of the State was not shown.