Kelly v. State 282 A.D. 799

Claimant appeals from a judgment of the Court of Claims dismissing on the merits, after trial, his claim for damages for injuries to his person and automobile. The accident which is the basis of the claim occurred March 9, 1949, somewhat after 6.00 p.m., while he was operating his vehicle in a westerly direction on a two-strip concrete pavement of the Troy-Seheneetady highway, somewhat beyond Latham traffic circle. In the area of the accident the shoulder of the highway was lower than the surface of the pavement for a distance of at least 150 to 200 feet. Claimant stated that a motorist approaching from the west, “straddling” the center line, forced him to pull to the right so that his two right wheels went off the pavement to the shoulder; that the shoulder defect caused claimant to lose control over his car as he attempted to pull his wheels back to the pavement. Surface markings indicated that claimant’s vehicle, regaining the pavement, crossed it and the shoulder diagonally, went over and beyond a ditch for some distance, and came to rest upside down in a gully about fifty feet south of the south edge of the pavement. The trial court has found that, while there was negligence on the part of defendant in the maintenance of the highway, claimant was eontributorily negligent in the operation of his automobile, which was being operated at an excessive rate of speed under all the circumstances. The findings of the trial court, as the trier of the facts, were not against the weight of evidence and reasonable inferences to be drawn therefrom. Judgment unanimously affirmed, without costs. Present — Poster, P. J., Bergan, Coon, Halpern and Imrie, JJ.