205 A.D. 734 | N.Y. App. Div. | 1923
This claim was made under chapter 575 of the Laws of 1919. That act conferred jurisdiction on the Court of Claims to hear the claim made by the claimant against the State for personal injuries sustained by him on the 9th day of May, 1918, at the hands of a member of the New York Guard by reason of being shot by him “ without cause or provocation and unjustifiably ” in the vicinity of the Hudson river bridge between the cities of Albany and Rensselaer. It provided that if the court found that such injuries were so sustained “ and were occasioned by the willful or careless act of such member of the New York Guard, and that the claimant was free from contributory negligence,” the court might render an award of damages therefor.
The Court of Claims, after a trial of the claim, made findings upon sufficient evidence which established the facts of the claim to be as follows: On May 9, 1918, the claimant, with a companion named George Sheeran, left Rensselaer to return to Albany by way of the Maiden Lane bridge. This bridge, crossing the Hudson river, connects Rensselaer with the city of Albany and carries the main tracks of the New York Central railroad. The claimant and Sheeran were both intoxicated. They proceeded along the foot path on the north side of the bridge to a point 300 feet easterly of its Albany end. Here they stopped and engaged in an argument. They were then accosted by one Moratti, a member of the New York Guard, who told them to keep on going or he would put them under arrest. The claimant endeavored to climb over the railing separating the foot path from the railroad tracks, but
The judgment should be reversed, with costs, and a judgment directed, with costs in favor of the claimant in the sum of $10,014.40. The court should disapprove finding 25, and find that the claimant was not guilty of contributory negligence.
Van Kirk, Hinman and Hasbrouck, JJ., concur.
Judgment reversed on the law and facts, with costs, and a judgment directed, with costs, in favor of the claimant in the sum of $10,014.40. The court disapproves finding of fact numbered 25, and finds that the claimant was not guilty of contributory negligence.