Onondaga County Milk Ass'n v. State

159 A.D. 925, 143 N.Y.S. 1024

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1913
• Status: Published

Opinion

Woodward, J.:

The State of New York maintains and operates a bascule bridge over the Oswego canal in North Salina street, Syracuse. The claimant is a domestic corporation engaged in buying and selling milk, delivered to customers in the city of Syracuse by means of horses and wagons driven by its servants. On the morning of the 13th day of June, 1911, Michael Rolio, an employee of the claimant, started from the plant of the company with a load of milk to be delivered to customers. He was using a covered wagon, and it is undisputed that as he approached the bridge in question he was looking ahead through the glass window in the wagon. He testifies that he was fully awake, having delivered one load of milk that morning before the then trip; that he was looking and listening, and that when his horse and wagon were both upon the bridge he saw the defendant’s flagman run out from a shanty on the far side of the bridge and wave a flag; that the flagman came forward, stopped his forward movement, and backed the horse off from the bridge, which was at that time being raised for the purpose of permitting a boat to pass through, and that the. horse and wagon fell off the edge of the bridge, doing the injuries for which this complaint was entered. There is a conflict of evidence upon the main facts. The State’s witness claims to have seen the claimant’s wagon when some eighty feet away from the bridge, and to have given warning by the waving of the flag and calling to the driver, in the meantime having signaled the man who operated the bridge to lift the same; but the Board of Claims was not bound to believe this testimony, and it certainly is not entitled to be held to outweigh that of the claimant’s witnesses. The case is one which no court would disturb as between private parties, and we see no reason for a different disposition here. The determination appealed from should be affirmed, with costs. Determination unanimously confirmed, with costs.