Opinion
284 A.D. 1002 135 N.Y.S.2d 448 ALTON N. GREENBLATT, Appellant-Respondent, v. STATE OF NEW YORK, Respondent-Appellant. Claim No. 31244. Supreme Court of New York, Third Department. November 18, 1954
The State has appealed from a judgment of the Court of Claims in favor of claimant for $19,089.77. Claimant has cross-appealed from the same judgment as inadequate in amount. About nine o'clock in the evening of February 17, 1951, claimant was driving a station wagon, with lights lighted, westerly toward Kerhonksen, Ulster County, on State Route No. 55. There had been rain during the day, which had ceased. About three miles easterly of Kerhonksen claimant observed a sign reading, 'Slow--Ice May Form in Spots'. The sign was about 1,500 to 2,000 feet easterly of the place of his accident. Up to that point the road had been clear of ice and fairly dry. He slowed to about fifteen miles an hour. The view of the road westerly continued good for some time until he came upon a light fog bank, when he slowed to ten or twelve miles per hour, at which time he could see ahead about three car lengths. He saw and passed over a strip of ice, hit some bumps, the car skidded, and he remembered nothing more. The automobile left the road and came to a stop against a tree some seventy-five feet off the road, where he was found the next morning. In the vicinity of the accident the highway was a 7% down slope to the west and curved to the north on a four and one-half degree arc. It was banked so that the southerly or left-hand side of the road was one foot higher than the opposite side. The highway had five-foot shoulders with a shallow drainage ditch adjacent to the southerly shoulder. The area southerly of the drainage ditch was six to eight feet high, substantially a rock cut. Snow plowed from the highway filled the shoulder and drainage ditch to a depth of about two feet. Customarily, when water rose in the drainage ditch to and above the shoulder level, it flowed diagonally and northerly across the highway. This would happen several times a year. In the winter such water formed irregular strips of ice across the entire width of the road. The condition was known to the State, which sanded the highway at such times. On the day before, on the evening of the day of the accident, and on the succeeding day several such irregular patches of ice, about two feet apart, extended across the road from south to north. The ice was clear and had not been sanded during that time, although during December, 1950, and January, 1951, the spot had been sanded most of the time. Claimant's injuries were extensive, severe and painful, with permanent disability in the following respects: one inch shortening of the left leg and restriction in the knee motion thereof, excessive callous formation in the left thigh interfering with the muscle action and circulation of the leg, calcified trochanteric bursitis and limitation of motion and weakness of the left hip and traumatic arthritis of the neck, which will continue to increase. In our opinion claimant was entitled to judgment but the award was inadequate. The judgment is modified, on the law and the facts, by increasing the award to the sum of $25,000 and, as so modified, affirmed. Settle order on notice.
Bergan, J. P., Coon, Halpern, Imrie and Zeller, JJ., concur.