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claimed nor proven that the subsurface conditions were any different in this respect than the surface conditions, which revealed the presence of boulders and large stone of varying dimensions in abundance throughout the site of the contract, and the undisputed evidence is that the presence of such material on the surface indicated a similar subsurface condition. Moreover, claimant's director and managing engineer, Japp, testified he would always expect to find boulders on top of rock, and the plans show the presence of rock throughout almost the entire length of the contract site.

[9] Upon all of the evidence I am forced to the conclusion that on examination of surface conditions upon the site of the contract, the bed of the river and the adjoining lands, together with the notations on the plans showing location of rock and other materials penetrated by the sounding rod, must have indicated with practical certainty that an abundance of boulders and other large stones would be encountered in excavating below the bed of the river. That such was the expectation of the claimant is indicated by the fact that its plant was specially devised to deal with just such conditions. I cannot find that it was surprised and disappointed when it encountered them, or deceived by the plans with respect thereto. Witness Japp, for claimant, made a preliminary estimate of the cost of performing the contract, based upon the conditions which he claimed were represented by the plans. His estimate of the cost of the work, as exhibited by the plans, without profit was 47.77 cents per cubic yard. Witness Wells, for the state, fixed the fair and reasonable cost of the work under conditions actually encountered at 56 cents per cubic yard, including a profit of 15 per cent., or 47.6 cents without profit. Witness Lane, for the state, fixed the cost under actual conditions at 60 cents with profit. Deducting an allowance of 15 per cent. from the Lane figure gives a cost without profit of 51 cents per cubic yard. The values of Messrs. Wells and Lane as to the fair and reasonable cost of performance of the work under the conditions actually encountered agree very closely with each other and with witness Japp's preliminary estimate of the cost, based upon the information disclosed by the plans, and tend very strongly to. confirm the conclusion that the plans were not deceptive, and further that the contract price, 63.8 cents, was a remunerative one, and should have yielded all the profit anticipated by claimant when it entered into the contract. It follows that the claim, as to item 9, should be dismissed.

[10] Item 10, alleged in the fourteenth paragraph of the claim, is for increased cost of plant made necessary, as claimed, by the alleged misdescription of material to be excavated, and is for $144,130.98. Of course, no recovery can be had for the increased cost of plant, as such. Claimant so conceded on the trial. If, however, there were to be a recovery on account of increased cost of performing the contract, due to misrepresentation or breach of warranty (item 9), the increased cost of plant necessary to meet the misrepresented conditions would be an element to be considered in determining the amount of the increased cost of performing the work, and not otherwise. As

(182 N.Y.S.) it has been held that there can be no recovery for item 9, item 10 must fall with it, and for the same reasons should be dismissed.

Findings in accordance herewith may be presented.

WEBB and CUNNINGHAM, JJ., concur.

(112 Misc. Rep. 19)

FRASER v. STATE.

(Court of Claims of New York. May 28, 1920.)

1. Negligence Om93 (1)-Driver's negligence not imputable to passengers.

The contributory negligence of the driver of an automobile cannot be

imputed to the passengers in the car. 2. Canals 18-Persons driving into open bridge must show negligence of

state.

Persons injured when the automobile in which they were riding went into a state canal at a place where the bridge was up to permit boats to

pass must establish negligence on the part of the state in order to recover. 3. States Ows 112-Not liable for negligence, unless immunity waived.

Primarily the state is not liable for negligence, and it can only be made

navle when it waives its immunity, 4. Canals ww18_Evidence insufficient to sustain burden of showing absence

of watchman at open bridge.

In an action for injuries sustained when the automobile in which the claimants were riding went into a state canal at a place where the highway bridge was hoisted to permit boats to pass, evidence held insufficient to show by a preponderance thereof that there was no watchman present

to warn travelers. 5. Evidence w586 (3, 4)-Negative testimony insufficient to sustain burden,

when opposed to positive evidence.

Negative evidence that the witnesses did not see a watchman at an open bridge over a canal was insufficient to sustain the burden resting on the parties offering it, when opposed by positive evidence that the watchman was there, a bell ringing, and red lights burning; and this was true, even though the witnesses giving the positive testimony were defendant's

employés. 6. Evidence Om586 (1)-Evidence that witness did not see object is negative

testimony.

Testimony that witnesses did not see an object is no less negative testimony than testimony that they did not hear noises.

Separate claims, by Allan Fraser, by Edith S. Antram, by Bertha G. Antram, by Mary R. Cass, by Harry A. Antram, and by Lathrop P. Smith, against the State. Claims dismissed.

William J. Bullion, of Buffalo, for claimants.
John H. Clogston, Deputy Atty. Gen., for the State.

MORSCHAUSER, J. The above claimants filed claims for damages alleged to have been sustained by them on the 30th day of May, 1917. The claimants Mary R. Cass and Allan Fraser occupied the front seat of an automobile, and the other claimants were occupying the back part of the same automobile, and had left Buffalo in the morning for the purpose of taking a trip to Rochester, N. Y., and

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

having a day's outing. They arrived in Rochester late in the afternoon, and from there proceeded to Irondequoit Bay, where the party had dinner. After dinner the party proceeded back to Rochester, and westerly along Main street to Plymouth avenue, where they turned to the left and proceeded something like 300 feet, at which point they drove into the Erie Canal. This was about 9 o'clock in the evening. At that time the bridge over the canal, which is at right angles to Plymouth avenue, was hoisted, so as to permit a number of boats to pass. One of the boats became grounded, and there was considerable delay in getting the boat started. The day being a holiday, there was an unusually large amount of travel and traffic upon the street, and as the traffic was considerably delayed because of the raising of the bridge, quite a large number of people had gathered in the highway on each side of the canal.

There was a garage on each side of Plymouth avenue immediately adjoining the canal. The lights were lit in each of these garages, and the usual street lights, so far as the evidence shows, were lit and burning brightly. The driver of the automobile in which the claimants were riding proceeded along Plymouth avenue at the ordinary rate of speed until he arrived at the canal, and without stopping he continued very slowly on his way, and the entire party were precipitated into the canal, and fortunately none of the parties were drowned,

The claimants filed claims against the state, alleging that the state was negligent in failing to properly guard and protect the opening to the approach of the canal while the bridge was hoisted. The attorney for the state in his brief says:

"That the claimants were out for a day's pleasure. Perhaps they dined too well at the roadhouse."

But there is absolutely nothing in the evidence that justifies the inference asserted by the attorney for the state, and there is not any evidence that would justify a suspicion that claimants had in any way dined too well drank to excess. In fact, the claimants impressed us as being of very high type of citizens and eminently respectable, and we were very much impressed with their testimony, and the manner in which they gave it impressed the court that they were absolutely truthful. · [1] The state denies the negligence, and claims that the claimants were guilty of contributory negligence. While the driver of the car, Allan Fraser, might have been guilty of contributory negligence, such negligence can in no way be imputed to the other claimants, who were passengers in the car. Ward v. Clark, 189 App. Div. 344, 179 X. Y. Supp. 466; Terwilliger v. L. I. R. Company, 152 App. Div. 168, 136 N. Y. Supp. 733; Strauss v. N. E. Railway Company, 6 App. Div. 264, 39 N. Y. Supp. 998.

[2,3] But, before the question as to whether any of the parties who make a claim was guilty of contributory negligence or not is to be considered, the claimants must establish negligence on the part of the state. Primarily the state is not liable for negligence; and this has been recently decided in the case of Smith v. State, 227 N. (182 N.Y.S.) Y. 405, 125 N. E. 841, and many cases cited therein. And it can only be made liable when the state waives its immunity. In this case the state has assumed liability and waived its immunity, but with the proviso, however, in the legislative enactment assuming such liability, that the state would only be liable under the same circumstances and state of facts that individuals would be liable in an action for negligence, and to that extent only.

[4] The claim on the part of the claimants is that the state, when it hoisted the bridge, should have had some barrier to protect people from driving into the canal, such as a chain, or a gate, and should also have had a watchman or flagman there to warn people approaching the canal. The claimants attempted to prove upon the trial that there was no watchman there to warn the people who might be approaching.

While it is always a question for the court to say whether there is any evidence tending to show negligence on the part of a defendant with respect to his method of work, or in the method adopted by those for whose negligence such defendant was responsible, and it is for the jury to say whether the evidence submitted is sufficient to show negligence, yet we do not understand the rule to be that it is for a court to determine what precaution a defendant under the circumstances was bound to observe. There is no evidence in the case showing what is usually done in similar situations, and there is no evidence to show how streets having hoisting bridges are guarded. And therefore it is not the province or the duty of the court to say what kind of precaution, or guard, or method the state should adopt, but simply to determine whether the state adopted the ordinary precautions that are usually used or not. If not, then the state is guilty of negligence; but if the state adopted the usual methods, then the state is not guilty of negligence.

The claimants, who were the occupants of the car, all testified on the trial that they did not see any watchman, or any person with a red light, but that they did hear a bell, and supposed it was a fire engine, and that they saw the bridge in the air, but supposed it was an overhead railroad; so that the testimony of all the claimants, as to whether there was a watchman there or not, was at best negative.

The claimants also produced one Thomas H. Butler, a disinterested witness, who testified at first that he was at the scene of the accident a few minutes before its happening, and that there was no watchman there, and, when he was asked whether he saw one there, answered, “I looked for one, and didn't see one." He also says that after the accident he looked for the watchman, and didn't see any. He also testified on cross-examination: “Q. You wouldn't swear there was not one? A. No; I would not." And in his testimony he also stated that he did not hear any bell, and that at the location where the car went into the canal there was a towpath; that after dropping from the roadway the car fell onto the towpath, and then continued on into the canal.

All the other witnesses, of both the state and the claimant, state there was no towpath at the place where the car went into the canal,

and also all the witnesses clearly state that, at the time the car went into the canal, the bell, which is a signal upon the bridge, was ringing. So that it is evident that, while we believe the witness Thomas H. Butler intended to be absolutely correct and honest—and he so impressed the court_his observation of some of the facts and conditions at that time was not correct, and his evidence as to the fact of whether there was any watchman there or not at the time is negative. Not

any of claimants' witnesses testified that at the time of the accident they were giving any special attention by observation as to whether there was a flagman there, or a signal given with a red lantern, at the time. While the witness Butler, for the claimant, testified that he looked and did not see any watchman, on cross-examination he testified that he would not testify there was not such a watchman there, so that all the testimony on the part of the claimant is at best negative.

As against the testimony of the claimants, and this witness Butler, the state produced one Richard McDonald, who testified that he was not an employé of the state, had no interest in the claim, and that at the time of the accident he saw one Stillson F. Curtis, who was the watchman there, in the middle of the road right at the edge of the canal, on the side of the canal that the claimants were approaching, and that he saw him have a red lantern and swing the same. Henry G. Cook, an employé of the state, testified that he was at the place of the accident, and that the watchman Curtis was there swinging his red lantern. Stillson F. Curtiș, who was the watchman, also testified that he was there at the time, swinging his lantern, and that he continued to swing the same until he was compelled by reason of the approach of the automobile in which the claimants were riding to step to one side to avoid being struck.

One Thomas Mellor, a police officer, testified that he arrived there shortly after the accident and found Curtis, the watchman, on duty. And all of these witnesses testified positively to the red lights being on each side of the uprights of the bridge, and that the bell was ringing, and that the light in front of the garage was brightly lit, and that there were a large number of people on each side of the canal waiting for the bridge to come down, so they could cross. All of the claimants testified positively, and Butler, the disinterested witness, also testified positively, that they did not see any person with a red lantern, or see any watchman; and while Butler testified on direct examination that he made an observation as to whether there was a watchman there at all or not, yet on cross-examination he simply says he did not notice any.

The fact that the bridge had been up an unusual length of time, and it being a holiday, probably increased to a considerable extent the traffic, and caused a large number of people to accumulate at the edge of the canal, waiting for the bridge to be lowered; and, while the witnesses for claimants say they did not see a watchman, the fact that they did not observe such a watchman can be easily explained by the large number of people standing on the sidewalk and in

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