(dissenting). I am unable to agree with the majority and vote for a reversal of the judgment.
While driving her car on a two-lane highway (Route 17) and after breaking over the crest of a hill claimant struck a patch of ice, skidded off the road and crashed into a tree. It is undisputed that claimant had never driven a car over this road before. It is also apparent that at the place of this occurrence, water would collect on the harrow shoulder and highway whenever there was melting snow, because of the slope of the adjacent land and the shallow drainage condition resulting in ice forming thereon when the temperature dropped. This was common knowledge among people who travelled the highway and the situation had existed for some period of time, the testimony showing that this situation had prevailed for a period of from *67two to five years. The .State owes a duty to the users of State highways to give adequate warning of the existing conditions and hazards on its highways. (McDevitt v. State of New York, 1 N Y 2d 540.) It is undisputed that there were no signs erected to give warning of the conditions to be found. The record fails to substantiate the court’s findings that prior to the accident on the night in question generally icy conditions prevailed.
The greater, if not the strongest, weight of the evidence showed that the situation complained of had existed for such a long period of time that the State was placed on constructive notice thereof. To the extent that the condition was caused by the narrow shoulder and shallow drainage facilities, such notice would indeed, not be necessary in any event, for the evidence showed that the State had constructed and maintained these facilities (Costa v. Kjeligren Constr. Co., 18 A D 2d 1075).
To buttress the claimant’s contention, an engineer gave uncontradicted testimony that the improper drainage facilities caused the ice to form. While it is true that under ordinary circumstances it is within the province of a trier of facts to determine whether an expert’s opinion should be accepted or rejected (Commercial Cas. Ins. Co. v. Roman, 269 N. Y. 451, 456-457) such an expert’s opinion should be given weight when it is not contradicted by any direct evidence or opposed to the probabilities (Jensen v. Santa Gasale, 22 A D 2d 994), wherein we stated: ‘‘ His uncontradicted testimony was entitled to be given weight. What was held in a landmark case as to the effect of the uncontradicted testimony of a party applies with at least equal force to the testimony of an expert witness; that is: ' Where * * * the evidence of a party to the action is not contradicted by direct evidence, * * * and it is not opposed to the probabilities; nor, in its nature, surprising, or suspicious, there is no reason for denying to its conclusiveness.’ (Hull v. Littauer, 162 N. Y. 569, 572; Richardson, Evidence [9th ed.], § 123, pp. 95-96.) ”
The court predicated its finding of contributory negligence on the testimony of the witness Salinas whose car claimant had passed prior to the accident. The conclusion of the trial court that the claimant was contributorily negligent is clearly contrary to the weight of the evidence. The record shows that the claimant, traveling at a moderate speed, passed the car operated by Mrs. Salinas on a straight stretch of highway where passing was permitted. The witness Salinas testified that the road was icy all the way from Grossingers, but the greater weight of the evidence produced through the disinter*68ested eyewitness Sweet and that of the trooper would indicate that the first ice patch encountered by the claimant was the one where she skidded resulting in the accident. Upon the facts in this case and the clear testimonial and documentary evidence, the trial court erroneously exercised its fact-finding power when it determined that the' claimant was contributorily negligent. (See Rugg v. State of New York, 1 A D 2d 916; Bruce v. State of New York, 3 A D 2d 793.)
The judgment should be reversed and a new trial ordered.
Gtbson, P. J., and Stalest, Jb., J., concur with Reynolds, J.; Atjlisi and Gabbielli, JJ., dissent and vote for reversal and a new trial in a memorandum by Gabbielli J.
Judgment affirmed, without costs.