Opinion
November 4, 1960
Appeal from a judgment of the Court of Claims which dismissed a personal injury claim, finding that the State was free from negligence in the maintenance of a pathway in Tallman State Park, upon which claimant fell, and that claimant was guilty of contributory negligence. The pathway, about five feet wide and surfaced with blacktop material, was steep and winding. A continuous handrail ran on one side and there was a rail at intervals on the other. To permit drainage of surface water, depressions known as "thank-you-ma'ams" had been constructed in the walk, one about 30 feet from the bottom and the other about that distance above the first. Claimant, preceded by several members of her family group and followed by her son, proceeded down the pathway, holding to the railing with one hand, passed over the first thank-you-ma'am and fell at the second. Claimant said that there were leaves on the pathway and that she did not observe the depression. Her son also testified that there were leaves upon the path "at that time of the year", but the date was September 4 and the pictures which he took some days or weeks later displayed no leaves. He described the site of the thank-you-ma'am by saying that "the blacktopping was in pretty bad condition, there were ruts and crevices all along, and this particular crevice is quite large." This unsatisfactory description is that upon which claimant seeks to predicate liability and her case is not strengthened by the son's further testimony that this supposed condition of danger had existed for three years, on this path leading from the picnic area to the swimming pool in a well-frequented public park, without, as later appeared, the occurrence of a similar accident. The photographs offered by claimant are equally unsatisfactory and are difficult to reconcile with the State's exhibits. The State's witness, who inspected the site the day following the accident, said that the path was in good condition, without grooves, cracks or ruts, that there were no leaves and that during the five-year period preceding this accident no other accident had occurred upon it. The decision seems to us in accord with the weight of the evidence which the trier of the facts was entitled to credit. Judgment unanimously affirmed, without costs.
In decisions Nos. 1-96 the court is as follows: Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.