Phillips v. State

240 A.D. 944

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1933
• Docket: Claim No. 18552
• Status: Published

Opinion

Judgment reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Finding of fact No. 30 disapproved and reversed. Memorandum. The judgment is reversed upon the ground that the finding that causative negligence in the defendant was not proven is contrary to the evidence. The record discloses a physical situation and a set of circumstances such that in the exercise of reasonable care the State was obligated, by installing a sign or signs, to warn drivers of vehicles southward on the Lyndon-ville road of impending danger upon nearing the Ridge road. However, in the interest of justice, we grant a new trial, with costs to the appellant to abide the event. And upon such trial a finding should be made upon the question whether or not plaintiff is chargeable with contributory negligence. All concur, except Crosby, J., who dissents and votes for affirmance and for mating a finding of fact to the effect that the claimant was guilty of contributory negligence.