Opinion
May 24, 1973
Appeal from a judgment dismissing a claim against the State of New York, entered March 25, 1969, upon a decision of the Court of Claims. At approximately 8:30 A.M. on June 11, 1964, a clear, dry day, claimant's husband was killed while returning home from his job as a night guard when the automobile he was driving gradually veered off the road and an eight-foot wide stabilized shoulder and drove into a guiderail located off the shoulder. A disinterested eyewitness testified that decedent was traveling at about 50 miles per hour and did not slow down until the left front portion of his car struck said guiderail, which penetrated the vehicle and severed decedent's right leg. The decedent, for no apparent reason, drove his car off the highway and off the stabilized shoulder next to the highway, the circumstances of the accident indicating that he was at least five feet onto the grassy area next to said shoulder at the time his automobile struck the guiderail. Under such circumstances, the evidence sustains the finding that the accident was caused, not by the location or construction of the guiderail, which was sufficiently removed from the traveling lane, but by decedent's actions in driving off the road ( McNaughton v. State of New York, 9 A.D.2d 990). Judgment affirmed, without costs. Staley, Jr., J.P., Cooke, Sweeney, Kane and Main, JJ., concur.