Opinion
November 16, 1949.
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 one and one-half 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 thirty 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 contact 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 App. Div. 981) is distinguishable. Judgments reversed on the law and claims dismissed, without costs. Foster, P.J., Deyo, Santry and Bergan, JJ., concur; Heffernan, J., dissents. [See post, pp. 806, 877.]