
    Carol L. Murray, as Administratrix of the Estate of Casimer P. Rutkowski, Appellant, v State of New York, Respondent.
    (Claim No. 51069.)
    Argued November 25, 1975;
    decided December 22, 1975
    
      
      Anthony J. Colucci for appellant.
    
      Louis J. Lefkowitz, Attorney-General (Peter Joseph Dooley and Ruth Kessler Toch of counsel), for respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

Even if it be assumed (it being unnecessary for us so to decide) that the State of New York was negligent in the design or construction of the one-way junction ramp known as Ramp "B” which carries westbound traffic from the Young-man Expressway to the Niagara section of the New York State Thruway, or that the State was negligent in the location of speed signs thereon, there is no evidence in this record that such negligence, if any, was the proximate cause either of the unwitnessed accident or of any aggravation of injuries suffered by the decedent passenger. There is no evidence whatsoever as to what caused the 1960 Cadillac sedan in which the deceased driver and passenger were riding to leave the highway in the early morning hours of Saturday, May 4, 1968. To argue, as does appellant, that the asserted negligence of the State was a substantial factor in bringing about this event or in aggravating injuries which the decedent passenger might otherwise have suffered is only to invite impermissible speculation.

Fuchsberg, J. (concurring). Since the driver and passenger in this case were both killed and there were no eyewitnesses, I believe the fact finder’s right to choose from the parallel inferences here interdicted a finding that proximate cause was lacking as a matter of law (Noseworthy v City of New York, 298 NY 76, 80; Schechter v Klanfer, 28 NY2d 228, 232). However, on reviewing the facts themselves (NY Const, art VI, § 3, subd a), including the combination of decedents’ drinking into the wee hours of the morning, the wetness of the road at 3:15 a.m. when the accident happened and the evidence of high speed to be garnered from the violence of the impact, I am constrained to join the rest of the court in affirming the order of the Appellate Division.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur; Judge Fuchsberg concurs in a separate memorandum.

Order affirmed, with costs, in a memorandum.  