Opinion
Claim No. 27650.
August 22, 1944.
Proceedings in the matter of the claim of Grover Town against the State for damage to claimant's truck as the result of a collision with the state's truck.
Decision for claimant.
For claimant: Woodin Woodin, of Dunkirk, Glenn W. Woodin, of Dunkirk, of counsel.
For the State of New York: Nathaniel L. Goldstein, Attorney General, and Edward R. Murphy, Assistant Attorney General, of counsel.
Also: Rann, Brown, Sturtevant Kelly, of Buffalo, Franklin R. Brown, of Buffalo, of counsel.
On February 27, 1943, the traffic signal light at the intersection of two state highways in the hamlet of Stockton, Chautauqua County, was out of order. The villagers testified it had been so for ten to fifteen days. They were not disputed. They also testified that the disorder was such that the signal was green on all four faces at once, then red on all faces at once. Beyond doubt, this was their honest impression and recollection and it was in part corroborated. But it is an inexact report of the actual condition.
After the accident and on the same day the light was inspected and repaired by a state highway employee, the electrician charged with its maintenance. In normal operation the light was set for a thirty second interval of green for north and south traffic with simultaneous red for east and west traffic, succeeded by a twenty second interval of green for east and west traffic with simultaneous red for north and south traffic. To this was added a four second overlap when all four faces were red before the light would change to green in the alternate direction. Upon inspection the electrician found that the control for the green light for north and south traffic was out of order due to the contact points being pitted together. However, the control for the red light for north and south traffic and the controls for both red and green for east and west traffic were in working order. The result was that the green light facing north and south was illuminated at all times including the period when there was a green light facing east and west. Then for twenty-four seconds the north and south faces showed both red and green. Although the State of New York had no actual notice of the defective working of the mechanism, we are justified in finding that it had constructive notice.
At about 9:30 o'clock on the morning of February 27, 1943, claimant's one and a half ton truck was being driven in a southerly direction by claimant's employee Horton. The weather was clear. Horton's view to his right, or west, as he approached the intersection was obstructed by a building which stands in the northwest corner of the intersection in close proximity to the highway. Horton was following another truck, also owned by claimant. He testified that he saw the green light and expected to slow down because he thought it would change, but it didn't and he entered the intersection at a speed of ten to twelve miles per hour; that thereupon he observed a truck coming from his right, eighty to one hundred feet away. This was a seven and a half ton dump truck owned by the State of New York and operated by one of its employees. It struck claimant's truck on the right-hand cab door and turned it around so that it headed partly in the direction from which it had come and came to rest in the area of a service station at the northeast corner of the intersection.
Springer, the operator of the state owned truck, testified that as he approached the intersection, the light facing him was red until he was within one hundred feet of it when it changed to green; that he did not increase or decrease his speed but maintained it at about twenty miles per hour; that he did not see the claimant's truck until he was "pretty nearly in the center of the road" and the claimant's truck was "pretty nearly in front of us". Springer was corroborated by another state employee, his passenger. Springer had previously reported to the Motor Vehicle Bureau a speed of twenty-five miles per hour.
On the subject of speed of the two vehicles, a disinterested witness, a pedestrian who was approaching the intersection from the west, estimated that claimant's truck was going at fifteen to twenty miles per hour and the state truck twenty to twenty-five miles per hour. The state truck had overtaken and passed him about three hundred feet from the intersection the claimant's truck came into his view when it was about twenty or thirty feet from the light. Although at one point this witness said that the two trucks must have been about the same distance from the intersection and hence travelling at about the same speed, we are satisfied upon the whole record that the state truck was travelling at a speed considerably greater than claimant's and we so find.
Claimant sues to recover for damages to his truck charging first that the State of New York was negligent in the maintenance of the signal light and, second, that its employees were negligent in the operation of its truck. Saving the question of contributory negligence, which, of course, would defeat the claimant on either allegation of negligence, it may be said that the State is liable on the first count. In respect to contributory negligence it appears that claimant's employee was driving at a speed which was reasonable, and in substantial compliance with law, and that he proceeded in reliance upon the green light. He had no previous knowledge that the light was out of repair and, once having entered the intersection, his attention was directed to the truck coming from his right. He testified: "I kept my eyes on him to see if he was going to stop." It does not appear that at any time he observed the red light flash on and as it is undisputed that one lens facing him always remained green, it is our judgment that he should be absolved from contributory negligence.
In behalf of Springer, it is urged that he, too, was invited into the intersection by the green light and furthermore that as he was approaching from Horton's right, he had the prevailing right of way. Contra, it is pointed out that his admitted speed of twenty to twenty-five miles per hour was in violation of Section 56, subdivision 2(a), of the Vehicle and Traffic Law, which provides that a rate of speed in excess of ten miles an hour at an intersection where traffic is controlled by a traffic control signal, shall be unlawful. There is also to be considered his belated observation of the presence of claimant's truck, as above noted. All of these factors we have weighed as triers of fact and have come to the conclusion that the decision should be adverse to the defendant.
As to damages the expense sustained by claimant for repairs is practically undisputed. Claimant was without the use of his truck for 46 days, for which he asks $8 per day. The per diem is fair and reasonable. The defense argues that the number of days is unreasonable, but the testimony is that the truck was actually in the repair shop that long and that there was delay in the delivery of ordered parts to replace those broken. We allow the full amount.
Enter decision accordingly.