From Casetext: Smarter Legal Research

Cross v. State

Appellate Division of the Supreme Court of New York, Third Department
May 22, 1967
28 A.D.2d 607 (N.Y. App. Div. 1967)

Opinion

May 22, 1967


Appeal by claimants from judgments of the Court of Claims entered September 11, 1964 which dismissed their negligence actions for damages and personal injuries arising out of a highway accident. Claimants, husband and wife, were traveling west on New York State Route 29 in Washington County on Sunday night, July 19, 1959 with the husband driving his car and his wife as a passenger. At approximately 9:30 P.M. their car was in collision with an east-bound car just west of the intersection of Route 29 and New York State Route 40. Route 40 terminates at this point forming a "T" intersection with Route 29. Route 40 was being repaired and a drainage culvert had been dug across Route 29 west of the intersection. The excavation had been filled, graded and treated with calcium chloride. Warning signs advising of the construction had been erected and there were flares burning at the signs and at the intersection. Claimants claim that they were following a car after overtaking it when it stopped suddenly at the excavation across Route 29. Unable to stop his car, claimant husband pulled to the left around the unidentified car, crossed the excavation and collided head-on with an oncoming car as he attempted to return to his side of the road. The Court of Claims after hearing all the evidence was convinced "that no negligence on the part of the State caused or contributed to the accident, but that the accident was entirely caused by the negligence" of the claimant-driver. Claimants contend that the existence of the excavation and the State's failure to resurface it and to provide reasonable notice of its existence constituted the proximate cause of the accident. Even though there are the natural discrepancies in the testimony as to the actual depression, the placement of the flares and warning signs, these involved only factual questions. A review of the record fails to indicate that the Court of Claims erred in its conclusion. Judgment affirmed, without costs. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.


Summaries of

Cross v. State

Appellate Division of the Supreme Court of New York, Third Department
May 22, 1967
28 A.D.2d 607 (N.Y. App. Div. 1967)
Case details for

Cross v. State

Case Details

Full title:DONALD CROSS, Appellant, v. STATE OF NEW YORK, Respondent. (Claim No…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: May 22, 1967

Citations

28 A.D.2d 607 (N.Y. App. Div. 1967)