Opinion
May 31, 1967
Appeal by the State from a judgment which awarded money damages to the claimant for injuries sustained in a highway automobile accident. On March 19, 1961 in midafternoon the claimant was operating his automobile on what has been referred to as Route No. 94, proceeding in an easterly direction toward Newburgh. When he reached the crest of a hill and started down, his car went into a skid, travelled along the shoulder of the road for a considerable distance, struck a tree on the south side of the road in the direction in which he was proceeding, veered across the road and forcibly came to a stop when the automobile collided with a concrete culvert. Sometime during the early afternoon, as often happens in March, there had been a storm which consisted of a mixture of rain, snow and sleet, and prior to the accident the road over which the claimant drove was wet and icy in spots. The claimant alleged that the accident happened because of improper construction and maintenance of the roadway and shoulders and for failure to have adequate warning signs. The court in its decision made the following findings of negligence against the State: 1. That Route No. 94, built in 1935, was not constructed in accordance with good engineering practices as follows: a. The manner of construction of the curve obliterated the view of the driver as to the course and alignment of the road. b. The long curve and steep grade differed from the type normally encountered. c. Failure to properly ditch the road. d. "Score marks" (herringbone pattern) on pavement not properly angled. 2. The State was negligent as to signs, particularly in failing to have a speed sign. As to the happening of the accident in question, a reading of the record is convincing that the findings of the court as to alleged improper construction and maintenance are not related to the occurrence: a. There is no testimony that the view of the driver as he approached the hill and curve in any remote way contributed to the happening of the accident. A sign showed an approaching curve and its direction. b. The claimant's expert, after setting forth the length of the curve, the grade of the hill, the effect of the sun, shade, trees and atmospheric conditions, and water flowing across the road, stated that such conditions "very likely caused a freeze and ice" at times. The witnesses called on behalf of both parties with reference to the conditions existing at the time of the accident used such terminology as: "rainy — road icy"; "very wet and snowing"; "sleet"; "sort of slushy"; "wet slush". Additionally, the claimant stated that he had previously encountered icy portions on this highway and it was wet as he was approaching the scene of the accident. c. There is no evidence in this record that ditches, or their absence, on either side of the road in any way contributed to the happening of the accident. d. In the exhibits offered by the State, the lane on which the claimant was driving shows indented lines across the road at regular intervals and these have been referred to as "score marks" or "herringbone pattern". They are described as follows: "The herringbone pattern scoring is a system of grooves, a pattern of grooves embedded, impressed in the surface of the concrete payement in a herringbone patter [ sic] the apex of which is at the center line of the pavement and the ends of which are pointing downgrade approximately 45 degrees with the center line, at that angle." There seems to be no dispute that the purpose of such pattern is to increase the friction of the surface to produce added traction and improve the run off and drainage of the road. The claimant's expert stated: "These score marks are generally recognized as ineffectual, and adding nothing to a steep hill, while many times causing an adverse condition." However, there is no evidence in this record that this condition in any way contributed to the happening of the accident or the generally wet condition of the road. We need not spend time as to the finding of negligence based on inadequate signs. The claimant's testimony as to his speed — 30-35 — was well within any speed limitation testified to by the experts and by his own testimony it is doubtful that he observed the signs that were along the road as he approached the hill. It becomes perfectly evident from a reading of the record that the alleged improper road construction did not contribute to the happening of the accident. Some of the State's photographs were identified by the claimant as showing the general road conditions which existed at the time of the accident. The claimant's witness, Dragonetti, testified that when she heard the crash she immediately left her house adjacent to the road, that there was a mixture of sleet and snow falling and that the road was covered with ice. A State Trooper, testifying for the State, described the weather as being a "sudden squall" and that when he arrived at the scene of the accident it was "snowing very lightly". He observed that the paved portion of the road was wet with slush and he identified the State's photographs as fairly portraying the prevailing conditions. A taxi driver, whose automobile left the road and struck a tree shortly after this accident, testified as to the reasons which caused him to leave the road, none of which were associated with any acts of negligence by the State. To say that the State was negligent under these circumstances, based on faulty construction of the road, is to impose upon the State impossible responsibilities. It makes the State an insurer, contrary to established law. Sudden storms, as with frost conditions, are part of nature, dependent upon the season of the year. (See Knowles v. State of New York, 20 A.D.2d 738.) In Boyce Motor Lines v. State of New York ( 280 App. Div. 693, 696, affd. 306 N.Y. 801) the court said: "The State was not an insurer. It had a duty to construct and maintain its highways in a reasonably safe condition, in accordance with the terrain encountered and traffic conditions to be reasonably apprehended. But even so, a certain risk was unavoidable. Roads cannot always be straight and level, and curves with descending grades are always potentially dangerous. A highway may be said to be reasonably safe when people who exercise ordinary care can and do travel over it safely." The testimony remains undisputed that the claimant, in the operation of his automobile from the time it first started to skid, travelled several hundred feet; went onto the shoulder, travelled some distance thereon before striking a tree and then veered across the road and continued until the automobile was forcibly stopped. Such evidence, at least, imparts doubt as to the manner of the operation of the automobile. ( Meshurle v. State of New York, 25 A.D.2d 709.) The court's finding that the State was negligent because of improper construction and inadequate signs was against the weight of evidence. (See Barrett v. State of New York, 22 A.D.2d 347; Kaufman v. State of New York, 27 A.D.2d 587 .) From the present record and under the circumstances, the State of New York was not negligent. Judgment reversed, on the law and the facts, and claim dismissed, without costs. Gibson, P. J, Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J.