Wingerter v. State

OPINION OF THE COURT Memorandum. The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs. In this wrongful death action, brought on the theory that the State was negligent in designing, constructing and maintaining a highway, it cannot be said as a matter of law that the findings on negligence and causation made by the Court of Claims and affirmed by the Appellate Division are not supported by the record as a whole (see Padula v State of New York, 48 NY2d 366, 371). All the more is this so since “in a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence” (Noseworthy v City of New York, 298 NY 76, 80). Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur. Judgment appealed from, etc.