Welker v. State , 284 A.D. 996 ( 1954 )

The State has appealed from a judgment of the Court of Claims, awarding claimant damages in the amount of $22,392.25 for injuries resulting when his automobile left a highway and collided with a tree. Claimant was operating the automobile in an easterly direction on State Route 23-A, a two-strip highway, between Palenville and Kiskatom, New York. An approaching ear was veering over to claimant’s side of the road. He moved his car to the right and it slid off the edge of the pavement and into a rut or depression along such edge. The automobile returned to and went diagonally across the highway into a tree. There was evidence that the depression was some five to seven inches deep and had existed from September, 1950, until the time of the accident on January 22, 1951. Claimant suffered, with other injuries, a compound com-minuted fracture of his right femur, which fracture was reduced, a metal plate inserted, and a cast applied to his leg. The doctor prescribed the use of crutches. In July, 1951, one of the crutches slipped and claimant fell, as a result of which the plate and the screws loosened and the unhealed fracture howed. The plate had to be removed. The fracture subsequently united but with a bowing and a one inch shortening of the leg. Claimant was totally incapacitated for about a year'and has been found to be partially incapacitated with a resultant loss in earning capacity. It could be found from the evidence that the injury by reason of the slipping crutch, while following the doctor’s directions to use crutches, and occurring at the spot of the original fracture, was the result of the first accident and was not due to the neglect or carelessness of claimant. It is clear that finding of fact No. 11 for the amount of $2,132.33 must erroneously include the item of $1,325 set forth in finding of fact No. 7 as damages to claimant’s automobile. The claimed and proven medical and hospital charges were $807.33. Such finding No. 11 should be modified by reduction to $807.33, and conclusion of law No. 1 should be modified by reducing the stated amount of the recovery to $21,052.33, and the judgment modified accordingly. Judgment is modified accordingly on the law and the facts and, as so modified, affirmed, with costs to the respondent. Settle order on notice. Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ., concur.