Babcock v. State — 231 N.Y. 560

Majority

p. 560

Dudley P. Babcock, Respondent, v. The State of New York, Appellant.

Headnote

State — claim by employee for personal injuries received while in performance of his work — defense of contributory negligence overruled.

Babcock v. State of N. Y., 190 App. Div. 147 , affirmed.

(Argued April 25, 1921;

decided May 10, 1921.)

Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 31, 1919, reversing a judgment in favor of defendant entered upon a dismissal by the Court of Claims of the claimant’s claim and granting a new trial. Claimant was first assistant engineer in the state department of highways. While making a survey on Storm King mountain for a proposed highway, in order to reach a necessary point, he fastened a rope to a tree and proceeded to lower himself thereby. The rope broke and

p. 561

he rolled down the mountain, receiving serious injuries. The Court of Claims dismissed his claim for damages on the ground that he was guilty of contributory negligence. The Appellate Division held that under the provisions of thb enabling act (L. 1918, ch. 608) claimant was entitled to recover.

Charles D. Newton, Attorney-General (Henry C. Henderson of counsel), for appellant.

Andrew J. Nellis for respondent.

Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

Concur: Hiscock, Ch. J., Chase, Hogan, Cardozo, McLaughlin, Crane and Andrews, JJ.