Claim No. 28243 | N.Y. App. Div. | Jan 19, 1949
Judgment affirmed, without costs of this appeal to either party. Memorandum : The claimant failed to sustain the burden of establishing the fact that the right of way embraced within it the location of the accident. Even if the accident occurred within the limits of the highway right of way, neither actionable negligence nor nuisance was proven. The place of the accident was outside of the traveled portion of the highway. The State may not be held to anticipate that foot travelers would depart far beyond the ample shoulder of the road and enter into an area which was not intended and was not used for travel. Furthermore, we think the claimant’s intestate was guilty of contributory negligence. The burden was upon the State to establish such contributory negligence (Frate v. State of New York, 245 A.D. 442" court="N.Y. App. Div." date_filed="1935-11-13" href="https://app.midpage.ai/document/frate-v-state-5340689?utm_source=webapp" opinion_id="5340689">245 App. Div. 442), but, in our opinion, the State need not affirmatively allege it. (Dulinak v. State of New York, 177 Misc. 372" court="None" date_filed="1941-02-07" href="https://app.midpage.ai/document/dulinak-v-state-6158954?utm_source=webapp" opinion_id="6158954">177 Misc. 372,