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(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 soinewhat 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 Ow184—Fire warden, claiming for injury, held not guilty of con

tributory 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 ex

tinguish a fire, held not sustained by the evidence. 2. Negligence Om72—Error of judgment in emergency not contributory neg.

ligence.

An error of judgment of a person placed in an emergency is not con

tributory negligence. 3. Damages Em 132 (14)-$4,000 awarded fire warden for injuries to eyesight,

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.

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

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

(182 N.Y.S.) William M. Cameron, of Glens Falls, for claimant. E. M. Brown, Deputy Atty. Gen., for the State.

MORSCHAUSER, J. The above-named claimant, during the month of June, 1913, was in the employ of the state of New York as a fire warden. On the 9th day of June, 1913, in the town of Luzerne, Warren county, N. Y., a forest fire broke out, and claimant assisted in extinguishing the fire. On the day following the fire claimant drove his horse and wagon in the vicinity of said fire, hitching the horse near an old barn, some distance away from the place where the fire had burned on the previous day. Claimant, upon investigation, discovered that the fire had broken out anew, and immediately started for the place where his horse was tied, in order to drive to one of the city reservoirs of the city of Glens Falls, N. Y., where a large number of men were then employed at work on said reservoir, for the purpose of getting help to extinguish the fire.

In his efforts to get to the horse he fell over an obstruction which was in the old wood road, and before he could reach the same the fire, because of a sudden wind, spread so rapidly as to overtake the claimant, who attempted to escape by running back to the place from where he started. In his efforts to do so he was severely burned upon his knees, his clothes got afire, his hands were severely burned, his face was severely burned and blistered, and his right eye injured. An assistant who followed saw his danger, and ran in and helped him out, and then ran around a somewhat longer distance to untie the horse. While the horse was being untied, the fire had gotten to where the horse was, and scorched the lower part of the horse's. body. The assistant then drove around to where the claimant was, and then went down to the reservoir to obtain assistance. He was then taken home, a doctor obtained, and the claimant remained ill for considerable time,

The Legislature thereafter, by chapter 568 of the Laws of 1919, passed an enabling act, which reads as follows:

"Section 1. Jurisdiction is hereby conferred upon the Court of Claims to hear, audit and determine the alleged claim of William L. Van Deusen against the state for personal injuries alleged to have been sustained by him while fighting fire in the vicinity of West Mountain, in the town of Luzerne, on the 10th day of June, 1913, by reason of being surrounded by fire and severely burned and permanently injured, while in the employ of the state as a fire warden, and in the course of said employment; and if the court finds that such injuries were so sustained while said claimant was in the employ of the state in the performance of his duties as fire warden and that said claimant at the time was using reasonable care under the circumstances to prevent injury, damages therefore shall constitute a legal and valid claim against the state, and the court may award to and render judgment for the claimant against the state as compensation for such injuries, in such sum as it shall deem just and equitable, provided the claim herein is filed with the Court of Claims within six months after this act takes effect.

"Sec. 2. This act shall take effect immediately."

The case was tried at Glens Falls on March 19, 1920, and the testimony showed that the claimant has not only been disfigured for life, but has been made lame; that the right eye has been injured to

182 N.Y.S.-32

a considerable extent and the sight weakened. The testimony also showed that at that time claimant's left eye was substantially useless, and had been for a long time, so that the claimant is unable to do much work. Prior to the time of the injury he was a farmer, operating apparently successfully his farm, and doing considerable work in the winter, such as hauling logs, etc. Since then he has been only able to drive a team and do light work, and his earning capacity has been greatly diminished.

[1, 2] The state's defense is that the claimant has been guilty of contributory negligence. The proof does not justify any such inference. The fire was spreading rapidly, the claimant's horse was in danger, and it was important to the claimant to have the use of his horse for the purpose of going to a place rapidly to summon help. This, the claimant testified, was the purpose of going after his horse. There was no apparent danger to him, as there was no fire in the wood road at the time, and had he not met with the accident by falling he would probably have reached his horse in safety. A sudden wind caused the fire to reach him, and he was placed in an emergency that required him to act quickly. The rule of law is that, where a person is placed in an emergency, an error of judgment is not contributory negligence. Roll v. Northern Central Ry. Co., 15 Hun, 496, affirmed 80 N. Y. 647; Bucher v. New York Central, etc., Ry. Co., 98 N. Y. 128; Geibel v. Elwell, 19 App. Div. 285, 46 N. Y. Supp. 76; Wynn v. Central Park & N. É. River Railroad, 133 N. Y. 575, 30 N. E. 721; Rush v. Joseph H, Bauland Co., 82 App. Div. 506, 81 N. Y. Supp. 830; Fay v. Metropolitan St. Ry. Co., 62 App. Div. 51, 70 N. Y. Supp. 763. [3] The claimant was a man of 50 years of

age, evidently a hardworking, capable farmer. His ability to work has been greatly diminished, his eyesight has been seriously affected, and the back of his hands and his face are disfigured and scarred. He was in the employ of the state at the time of his injury, and in an effort to protect the property of the state, and under chapter 568 of the Laws of 1919, if he was not guilty of any contributory negligence, he is entitled to have an award made as compensation for the injuries received in such sum as this court shall deem just and equitable. The claimant, in addition to being made lame and having partly lost his sight, has incurred a bill for physician's services in the sum of $200 and for nurse's services in the sum of $252.

We think, in view of all the circumstances, the age of the claimant, his circumstances in life, his earning capacity, his earning power before the injury, and the diminution of the same after the injury, that the sum of $4,000 would be a fair award.

ACKERSON, P. J., concurs.

(182 N.Y.S.)

THAXTER et al. V. STATE.

(Court of Claims of New York. June 4, 1920.) Canals Cw18_State held liable for injuries to lands due to the seeping of

water.

Where water seeped from the Erie Canal and injured lands, the state is liable to respondent in damages for the injuries sustained.

Claims by Roy Thaxter, by Herman Pronath, and by Samuel J. Hood and another against the State. Judgments for claimants.

L'Hommedieu & Wheadou, of Medina, for claimants.
George L. Meade, Deputy Atty. Gen., for the State.

MORSCHAUSER, J. The above claimants owned farms along the Erie Canal in the town of Ridgeway, Orleans county, all located on the northerly side of the canal level known as the 60-mile level between Lockport and Brockport. The land of the claimants all sloped towards the north, the canal running east and west at this point, and the evidence tended to show that water leaked through the canal bank and oozed out of the ground and did more or less damage to the crops of each of the claimants. The claimants testified themselves in their own cases, and called the other claimants herein as witnesses. With one exception, no witnesses were called, except the claimants, who testified for themselves or their neighbors.

Upon the trial the claimant Thaxter admitted that when he realized that he was being damaged he made no note as to the extent of the damage, and kept no track of the salvage, and did not realize that he had any claim until he was a witness in the case of another claimant against the state. The claimant Hood testified that the area of his injury was about 10 acres, giving the detals as to the number of acres of barley, oats, etc., injured. This he did upon cross-examination; and upon redirect, after his attorney attempted by many questions to get him to make an explanation, he still adhered to the fact that he had about 10 acres in area that was damaged. When the attorney for the claimant had finished his redirect, the noon recess was reached, and after the noon recess Hood was again put upon the stand, and then, without making any satisfactory explanation to the court, claimed that the area of damages was something like 15 acres. And each of the claimants impressed me as greatly exaggerating his damage, and as filing a claim for much more in damages than they actually sustained.

The state called three witnesses, who testified to the fact that they visited the claimants’ farms and testified to the extent of the damages which they observed. But the difficulty with the testimony of the state's witnesses was that they visited the claimants' farms at a time when they could not have seen all the damage that existed.

[1] There is no doubt but what the crops of the claimants were injured, and injured because of the leakage of waters from the canal, em For other cases see samo topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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