Mulligan v. State

32 Misc. 2d 647, 225 N.Y.S.2d 531, 1962 N.Y. Misc. LEXIS 3727

Opinion

Richard S. Heller, J.

Claimant herein was injured on September 16,1957 when he was hit in the head by a crank used to start the motor of a corn chopper.

On the day in question the claimant was driving a tractor to which was attached a corn chopper. The corn chopper, which had a separate engine, ran out of gas. The claimant stopped the tractor just over a knoll so that the chopper was at the brink. After he had replenished his gas supply, he attempted to start the motor by use of the crank. After a few tries the motor kicked back and the handle of the crank hit claimant in the head.

The corn chopper was a standard model and had been used for several years without mishap. Claimant had been instructed in the proper use of the machine.

There is no showing here that the motor was defective or that the State was negligent in any manner. The fact that an accident occurred does not indicate negligence in every incident. (Francisco v. State of New York, 277 App. Div. 919; De Pola v. State of New York, 249 App. Div. 793.)

The motion made by the Attorney-G-eneral at the close of this case for dismissal is granted and the claim is dismissed. The foregoing constitutes the written and signed decision of the court upon which judgment may be entered.