majority">Barrett, P. J.

The accident from which occurred the injuries to claimant’s intestate from which he died, I am satisfied, was caused by the negligence of the State’s employee. The standing vehicles from between which claimant’s intestate was withdrawing the chain were on the extreme north or right side of the highway and in plain view of Baker, the State’s employee, as he drove his truck down the hill and toward the place where the accident happened. These vehicles so standing constituted a situation compelling claimant to use somewhat more than ordinary care. (Tooker v. Fowler, etc., 147 App. Div. 164; Vehicle & Traffic Law, § 81, subd. 5, as amd. by Laws of 1930, chap. 756.)

*5The evidence leads to the conclusions that claimant’s intestate was struck by the State’s truck on the north or right side of the road; that no signal was given of the approach of the truck and that it traveled at a speed of from twenty to twenty-five miles an hour without changing its speed or its course until it came within three feet of claimant’s intestate and that it was then too late to avoid the accident. Claimant’s intestate at the time when he was struck, being on the north side or his own side of the road, had no reason to assume that the truck with one-half of the highway clear would hit him, and under the circumstances there is no sufficient proof on the part of the State to justify a finding that he was negligent. If the driver of the truck approaching this known place of possible danger had drawn to the left, as I think it was his duty to do, there would have been no accident.

Even if Distler, who was in charge of the threshing outfit, said it was not Baker’s fault or that Baker was going slow, such statements would not change the result as they are only the expressions of the witness’ opinions. Neither would it have affected the conclusion that I have reached if Distler did, as alleged, motion Baker to proceed down the hill, because it was the obvious duty of Baker to proceed with far more caution than he used.

It follows that claimant is entitled to an award.

Parsons, J., concurs.

Citation profile

How this case has been treated — in progress