Opinion
February 20, 1962
Present — Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal by claimant from a judgment of the Court of Claims dismissing a claim for damages arising out of an automobile accident on July 14, 1957 on Route 17 near Wurtsboro, Sullivan County. Claimant, while proceeding south on Route 17 at about 12:30 A.M., came to a detour road made necessary by the construction of a bridge over the Quickway. Claimant testified that as she was proceeding along the detour road at 25 miles per hour her car suddenly left the road and wound up in a drainage ditch on the west side of the road. Claimant maintains that the accident was caused by the negligence of the State in not properly marking with reflectors or guardrails the shoulders of the road which were level with the pavement. The court below found that the detour road was 40 feet wide with a double white line in the center, that although the shoulder between the macadam and the ditch was level with the pavement, the ditch was 7 to 10 feet from the edge of the pavement and that even at the point where a metal pipe culvert protruded from the shoulder the distance from the edge of the pipe to the pavement was at least 3 feet. The court also found that not only were there adequate warnings to southbound motorists of the impending detour road but that delineators had been placed at 75- to 80-foot intervals along the west side of the detour road and that in fact one of such delineators was found underneath claimant's automobile. On the basis of these findings the court below determined that the State had exercised reasonable care in maintaining the detour road and was not required to place lights, barricades or warning signs at the location of the accident as claimed by claimant. The court also determined, considering the highway in question, the fact that the night was clear and the pavement dry and that no emergency compelled the use of the shoulder, that claimant had failed to establish that she was free from contributory negligence. Claimant contends that the evidence does not support the finding that delineators or markers were on the westerly side of the detour road at the time of the accident. Claimant contends that the testimony of her witnesses that there were no delineators must be accepted over the State's that such were present. We cannot agree. At best a factual question existed. It is unquestioned that delineators were placed at 75- to 80-foot intervals along the detour road prior to its completion. That some were knocked down at times appears also, but a witness for respondent testified that if one was knocked down it was replaced. While it is impossible to tell if the particular delineator found under claimant's car was standing prior to the accident, the record contains ample evidence upon which the court could find, as it did, that delineators were present on the west side of the detour road at the time of the accident. Claimant also contends here that an admittedly well-lighted barricade to divert traffic onto the detour misled her into driving into the ditch. Claimant did not raise this contention in her claim or at the trial. Claimant seems to assert that the placing of adequate warning lights on the barricade required the State to use comparable warning devices to indicate the shoulders of the detour. It is sufficient to point out that we know of no requirement that would compel the State to use warning devices along the detour road comparable with those on the barricade indicating the detour. The barricade suddenly changing the direction of the highway would obviously require different warning devices than would be required along the shoulders of the detour. We agree with the court below that on the detour road here involved, the delineators, which were found to have been present, constituted adequate warning and thus no negligence on the part of the State has been shown which proximately caused or contributed to the happening of the accident ( McNaughton v. State of New York, 9 A.D.2d 990; MacGowan v. State of New York, 286 App. Div. 928). Finally we agree that there was sufficient evidence upon which the trial court could find that claimant did not establish her freedom from contributory negligence. At the time of the accident the weather was fair and the highway dry, the paved portion of the road was 40 feet wide and had a double white line to denote the middle and delineators to denote the shoulder. Since no emergency existed, the only permissible inference is that claimant was not paying proper attention to the road or maintaining a proper lookout at the time of the accident. Judgment unanimously affirmed, without costs.