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 or 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 N. 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. Curtis, 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

(182 N.Y.S.)

the roadway, which undoubtedly prevented the occupants of the car from seeing the watchman. There is no doubt but that Curtis, when he saw the car approaching, did run out, but necessarily stepped to one side to avoid being run into, and that this occurred while the automobile was so near the edge of the canal that the driver was unable to check its speed and prevent it from going into the canal. The fact that the car did not go any distance into the canal, but was close to the bank, indicated clearly to the court that the driver of the car had slackened the speed of the car considerably, and had taken alarm at some signal, or something to call his attention to the fact that there was danger. Had the car been going at the usual moderate rate of speed, it would have dropped into the canal somewhat farther away from the bank than is shown by the evidence in the photographs; and the evidence of all the witnesses was that, when they saw the car going into the canal, it was going so slow that the front wheels just dropped, and they thought the car would stop before it got into the canal.

[5] After seeing the claimants and their witnesses, we have no doubt but that they intended to be absolutely truthful; and the manner of their giving the testimony, and the moderate amount that they claimed for loss as to their personal property, and also for damages, indicated to us that the claimants intended to be absolutely honest and fair. But as the claimants hold the burden of proof, and must establish their case by a preponderance of evidence, we must be governed by the rule applicable to positive and negative testimony. The testimony on the part of the claimants was negative that there was no watchman there, while the testimony on the part of the state is positive that there was a watchman there, that the bell was ringing, and that the red lights on each side of the uprights of the bridge were burning brightly, in addition to the fact that there was a great crowd gathered there at the time, and the lights from the garage were shining brightly; and as to the question of the bell being rung, the claimants all admitted that they heard it at the time.

Applying the rule that negative testimony, as against positive testimony given on the trial, does not suffice to carry the case to the jury, we must hold that the claimant has not maintained the burden of establishing his case by the preponderance of evidence. Matutinovich v. New York Central, 182 App. Div. 451, 169 N. Y. Supp. 350, and cases cited therein; Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 133; McKeever v. N. Y. C. & H. R. R. R. Co., 88 N. Y. 667; Foley v. N. Y. C. & H. R. R. R. Co., 197 N. Y. 430, 90 N. E. 1116, 18 Ann. Cas. 631; Fowler v. N. Y. C. & H. R. R. R. Co., 74 Hun, 141, 26 N. Y. Supp. 218, affirmed 147 N. Y. 717, 42 N. E. 722; Rainey v. N. Y. C. & H. R. R. R. Co., 68 Hun, 495, 23 N. Y. Supp. 80; Becker v. Fargo, 158 App. Div. 810, 144 N. Y. Supp. 297; Young v. Erie R. R. Co., 158 App. Div. 14, 21, 143 N. Y. Supp. 176; Glennon v. Erie R. R. Co., 86 App. Div. 397, 83 N. Y. Supp. 875, affirmed 180 N. Y. 562, 73 N. E. 1124; Durkee v. Delaware & Hudson Canal Co., 88 Hun, 471, 34 N. Y. Supp. 978; Griffith v. Long Island R. R. Co., 147 App. Div. 693, 132 N. Y. Supp. 641.

The claimants assert that two witnesses who give positive testimony are employés, and therefore that their testimony should be disregarded. But it has been held that, where negative testimony is given on the part of a claimant, and positive evidence against the negative testimony is given by employés of a defendant, that the claimant has not, in cases of this kind, sustained the burden which is cast upon him to establish his case by the greater weight of evidence, and by a preponderance of evidence. Miller v. Brooklyn Heights Railroad Company, 158 App. Div. 808, 144 N. Y. Supp. 208.

[6] The claimants' counsel also urges very forcibly and ably upon us the proposition that the authorities cited had to do with the hearing of signals, and that there is a distinction as to a person seeing an object or hearing a noise. We do not believe that there is any difference in the rule. Negative testimony as to the sense of seeing is no different than negative testimony as to the sense of hearing; and the fact that the claimants were in the car approaching the canal, and did not see any watchman, does not make the testimony any the less negative than witnesses testifying they did not hear a signal given. Therefore, while we believe that the claimants in their testimony were truthful, an award for the damages sustained by them cannot be made, for the reason that they have not established their claim by the greater weight of evidence; and that the positive evidence of the disinterested witness, and also the employés of the state, has not been overcome by the negative testimony given by the claimants. The claims should therefore be dismissed.

ACKERSON, P. J., concurs.

(112 Misc. Rep. 15)

VAN DUSEN v. STATE.

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

1. States 184-Fire warden, claiming for injury, held not guilty of contributory negligence.

The state's defense of contributory negligence to claim, under Laws 1919, c. 568, of a fire warden burned while on his way to get help to extinguish a fire, held not sustained by the evidence.

2. Negligence 72-Error of judgment in emergency not contributory negligence.

An error of judgment of a person placed in an emergency is not contributory negligence.

3. Damages etc. $4.000 awarded under Laws 1919, c. 568, to a fire warden, 50 years old, injured in an effort to protect state property, whereby he was made lame, his ability to work was greatly diminished, his eyesight seriously affected, and his hands and face disfigured, necessitating expenditure of $452 for services of physician and nurse.

132 (14) —$4,000 awarded fire warden for injuries to eyesight,

Claim by William L. Van Dusen against the State for personal injury. Awarded $4,000.

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