Newmark v. Long Island State Park Commission , 24 A.D.2d 699 ( 1965 )

— Per Curiam.

The State appeals from an award for personal injuries sustained in consequence of a collision on the Wantagh State Parkway between claimant’s automobile and a State truck. The State called but two of its several employees who were witnesses to the accident or to the physical circumstances apparent immediately thereafter. There were contradictions and inconsistencies in the testimony of each. Finding variances, also, as between their statements and as between the State’s contentions generally and certain physical and photographic evidence, the trial court apparently disbelieved the truck driver and found that the State failed to give adequate warning of the danger which its truck driver created. It may be that this conclusion was not completely unwarranted but we need not determine the issue as the evidence does not, in any event, adequately support the finding of claimant’s freedom from contributory negligence. At the moment of the accident he was still 12 miles from the school where he was employed and at which he was supposed to report five minutes later, but he testified that, nevertheless, he was traveling at a slow speed, although he was in the fast lane, and had just overtaken and passed another car. His testimony that he observed neither the truck nor any of the workmen and that he saw no signs or cone, and neither observed nor felt contact with, any warning sign, although an unimpeached photograph seems clearly to indicate that his ear struck and damaged one and carried it some distance, is consistent only with careless inattentiveness, or with “ tailgating ” at an excessive speed, or with both. Judgment reversed, on the law and the facts, and claim dismissed, without costs. Gibson, P. J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.