Theil v. Radetzky

Defendant has appealed from a judgment of $1,710.55 in plaintiff’s favor entered in the Greene county clerk’s office on April 30, 1937, and from an order denying his motion for a new trial entered in said clerk’s office on May 7, 1937. On July 15, 1934, plaintiff was standing on the shoulder of a public highway running from the village of Hunter to the hamlet of Lexington. The highway is eighteen feet in width with a shoulder three and one-half feet in width between the south edge of the pavement and a concrete post. Plaintiff saw defendant’s car approaching at a rate of speed of from fifty to sixty miles an horn-. He took hold of the concrete post in order to save himself and, while standing in that position, was struck by defendant’s car and sustained a fracture of the leg and an injury to the sacro-iliac joint. The medical testimony is clear and convincing as to the injuries which plaintiff sustained. Defendant contends that plaintiff was guilty of contributory negligence and that the verdict is against the weight of the evidence. Only questions of fact are involved. It is the defendant’s contention that plaintiff was not struck by the automobile and that the fracture to his leg was sustained as a result of muscular contraction. This contention is frivolous. Judgment and order unanimously affirmed, with costs. Present — Hill, P. J., McNamee, Crapser, Bliss and Heffernan, JJ.