Opinion
276 A.D. 877 92 N.Y.S.2d 699 COOK v. STATE. DUDLEY v. STATE. Supreme Court of New York, Third Department November 29, 1949
Separate actions by Frederick Cook and Marilyn Dudley, an infant, by Ruby Dudley, her guardian ad litem, against the State of New York to recover damages for injuries sustained when motorcycle on which claimants were riding swerved off a highway.
The Court of Claims, Emanuel Greenberg, J., rendered judgment for the claimants, and the State appealed.
The Appellate Division, in a Memorandum, reversed the judgment and dismissed the claims and held that a differential in height in concrete highway slabs was insufficient to sustain claimants' charge of negligence against the state.
Before FOSTER, P. J., and HEFFERNAN, DEYO, SANTRY, and BERGAN, JJ.
Nathaniel L. Goldstein, Atty. Gen. (Wendell P. Brown, Solicitor General, Albany, John R. Davison, Ronald E. Coleman, Asst. Attys. Gen., of counsel), for appellant.
Charles H. Gaffney, Kingston (John E. Egan, Kingston, of counsel), for respondent.
PER CURIAM.
The two prior decisions of the court on these appeals and any judgments or orders entered thereon are vacated, and the court makes the following decision:
Claimants were riding together on a double seat of a motorcycle at 1 A.M., August 1, 1948. A statute requires the driver to carry any other person on a seat in his rear, Vehicle and Traffic Law, § 88. The motorcycle ‘ went out from under’ or ‘ swerved off’ from under the riders, and they were thrown to the pavement and injured.
The driver observed nothing unusual about the pavement as he drove along. Ten feet in the rear of the place where claimant Dudley lay on the pavement after the accident, claimant Cook observed a joint between the concrete slabs. This was described by a surveyor as a ‘ construction joint’ running parallel to the road. Claimant Cook described a slab at the joint as 1 1/2 inches higher than the adjoining one and separated by a space of one inch.
The surveyor made precise measurements and a cross-section survey. He found a differential in height between the slabs along the joint running along some 30 feet. It varied from one inch to one and a half inches. At the exact point where he made his cross-section, it varied one inch. He made many measurements in the locality, but did not testify to the width of this joint.
It is to this joint running parallel to the road that claimants, by inference, attribute the tipping of the motorcycle. If it could be found that this was a factor in the fall, the differential in height at the point of contract could not be found, since the joint ran parallel to the motion of the cycle and was of different altitudes. Such a difference in altitude is a common experience in highways, in this climate. No degree of care or foresight can avoid this occurrence. The State is not required to guard against every factor on the surface of a highway that could possibly be a part of an accident to a motorcycle, the stability of which depends on velocity, and greatly on the skill of the operator.
The ultimate test is the anticipation by public authority of a cause of danger having a magnitude sufficient to warn a reasonably careful man of a peril general to traffic. A multitude of conditions of visibility, surface, grade, light and shadow, can and do weigh into accidents which either will not be foreseen as factors or are not of average importance enough to warrant correction or the risk of public liability. The State cannot make its highways perfectly safe, and to impose liability here would make its risk interminable. Haggerty v. State of New York, 275 A.D. 981, 90 N.Y.S.2d 94, is distinguishable.
Judgments reversed, on the law and the facts, and claim dismissed.
The following findings of fact as found by the Court of Claims are reversed: Claim No. 29290, findings of fact Nos. 4, 5, 6, 8, 9, 10, 11 and 12, and claimant's requests Nos. 5, 6, 7, 8 and 10; Claim No. 29291, findings of fact Nos. 5, 6, 7, 9, 10, 11, 12 and 13, and claimant's requests Nos. 6, 7, 8, 9 and 11. Otherwise the findings of the Court of Claims are affirmed. The conclusions of law in each claim are reversed.
The following new findings of fact are made in each claim:
1. That a construction joint existed in the concrete pavement parallel with the highway near the place of occurrence of claimants' accident.
2. That a differential in height between the slabs at such joint extended for a distance of thirty feet parallel with such highway of varying height and width, the maximum differential in height being one and one-half inches and the maximum width of separation being one inch.
3. That the motorcycle on which claimants were riding went out from under claimants and they were thrown to the pavement and injured.
4. That the joint herein found to exist was a cause of such accident and injuries.
5. That no signs gave warning of such condition in the highway.
6. That claimants were not negligent.
FOSTER, P. J., and DEYO, SANTRY and BERGAN, JJ., concur.
HEFFERNAN, J., dissents.