Opinion
June 27, 1950.
Appeal from Supreme Court.
Present — Foster, P.J., Heffernan, Brewster, Deyo and Coon, JJ.
The action was brought to recover damages for negligence. On the morning of November 4, 1948, plaintiff was employed by the New York State Highway Department and he was engaged in flagging traffic at a point on Route 20 a few miles west of Richfield Springs. Repairs to the road were being made at this point but the highway was open to traffic. The road was 27 feet wide and consists of three strips of concrete. The highway runs east and west. Defendant Wilcox was driving a truck owned by the codefendants in an easterly direction. Plaintiff was standing in the middle of the highway signalling traffic. When the truck operated by Wilcox reached plaintiff the driver applied his brakes and the truck skidded to the north side of the highway and struck plaintiff. Defendants contend that plaintiff is guilty of contributory negligence as a matter of law. On that issue the proof presents only questions of fact. Defendants also contend that the verdict is excessive. Defendants made no attempt to contradict the medical testimony offered in plaintiff's behalf. We think only questions of fact are involved. Judgment unanimously affirmed, with costs.