(dissenting). After dark claimant was walking northerly on the westerly side of State highway No. 116. The pavement was twenty feet wide and the shoulder on each side six feet. As he approached within two feet of a bridge over a small creek, he observed automobiles coming from opposite directions and crossed to the easterly side, believing, as he said, that he would be in a less exposed position. As the automobiles met upon the bridge, he went to the extreme easterly side of the shoulder, fell over an abutment eighteen inches high and into the bed, of the stream twelve feet below. Holes had been cast in the top of the low concrete abutment to accommodate guard rails, but these had not been placed. The bridge formerly at this point was surmounted by a guard rail. The authorities of the State should have apprehended that pedestrians, in seeking to avoid automobiles meeting as they did on this occasion, would seek the extreme edge of the shoulder. An abutment of the height of the one over which claimant fell was not a safeguard against injury but a trap. The State was liable. (Nicholson v. Town of Stillwater, 208 N. Y. 203; Flansburg v. Town of Elbridge, 205 id. 423; Roberts v. Town of Eaton, 238 id. 420; Cotriss v. State of New York, 223 App. Div. 520.)
The judgment dismissing the claim should be reversed and the matter remitted to the Court of Claims for the purpose of fixing compensation.