Bertie Wise, Appellant, v. State of New York, Respondent

Bertie Wise, Appellant, v. State of New York, Respondent. (Claim No. 31313.) [MAJORITY] Appeal from a judgment of the Court of Claims, dismissing the claim at the close of the claimant’s case. The claimant was injured on February 17,1952, at about 10:45 p.h., when she caught her foot in a broken curbing along a sidewalk in Capitol Park, Albany, New York. The break in the curbing was approximately seven or eight inches long and about four or five inches deep. At the point of the accident, the sidewalk and the curbing were covered by snow; the edge of the sidewalk and the hole in the curb were not visible. The claimant had cut across the lawn and was proceeding in a westerly direction along the sidewalk when her foot was caught in the broken curbing, causing the claimant to fall to the ground. The case was dismissed at the close of the claimant’s case, the court stating that she was “guilty of contributory negligence ”, but we think the issues of the State’s negligence and of .the claimant’s contributory negligence presented questions of fact. Judgment reversed on the law and the facts and a new trial ordered, with costs to abide the event. Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ., concur.