May 9, 1951.
Appeal from Court of Claims.
The injuries complained of were sustained when the automobile which Lewis Shaw was driving and in which Jeanette Shaw, his wife, was riding as a passenger, failed to negotiate a curve, left the highway and traveled up an 8% grade some 200 feet along the shoulder and drainage ditch, struck a boulder imbedded in the back slope of the ditch seven feet six inches from the edge of the macadam and overturned against a tree ten feet away with sufficient force to demolish the car. The trial court has found that the accident was caused solely by the negligence of the claimant Lewis Shaw, and that the negligence of the State, if any, in the manner in which it constructed and maintained the shoulder and ditch in no way contributed thereto. The evidence supports the findings. Judgments affirmed, without costs. Foster, P.J., Brewster, Deyo and Coon, JJ., concur; Heffernan, J.: I concur as to the affirmance of the judgment and the dismissal of the claim in the case of Lewis E. Shaw. In the case of Jeanette B. Shaw, I dissent and vote to reverse the judgment and to grant a new trial. There is no claim made that this claimant was guilty of any negligence. The court below has found that the State was negligent. [ 196 Misc. 792.]