Opinion
March 12, 1952.
Appeal from Court of Claims.
All of the claimants-appellants (except Edmund Daudelin who claims derivatively on account of injuries to his daughter, the infant claimant, Jeanne C. Daudelin), sustained severe personal injuries when the automobile in which they were riding, driven by claimant Edward Joseph MacDuff, Jr., left a State highway in rounding a curve, and collided with a tree. After trial in the Court of Claims all of the claims were dismissed upon the ground that the accident was caused solely by the negligence of the claimant, Edward Joseph MacDuff, Jr., who was the driver of the automobile. Fundamentally the driver's negligence was based upon findings that he operated his automobile at an excessive rate of speed, and they were arrived at as a deduction from the evidence as to the course and distance the car traveled after it left the highway and the obstacles it met and collided with. While this was contrary to all the testimonial evidence which was received, we consider that as to the claim of the driver its dismissal upon the ground of his contributory negligence was sufficiently supported by evidence, in that under the circumstances shown he negligently operated the car either in getting into the dangerous situation which existed at the curve where he left the road or in attempting to extricate himself therefrom, or both. There was, however, no sufficient evidence to impute his negligence to any of the claimant passengers, and the evidence justifies a finding that they were free from any negligence which contributed to their injuries. The accident occurred at a sharp curve upon a State highway, Route No. 85, in the hamlet of Slingerlands. This highway runs generally easterly and westerly, and is a much traveled route to the Helderbergs. It is twenty feet wide. Originally constructed by the State of concrete in 1925, it underwent reconstruction in 1940 when the concrete was covered with blacktop bituminous macadam and, at the place of the sharp curve in question, the cobblestone gutter adjacent its southerly, or outer side, was surfaced with the same material. The degrees of this curve, horizontally, and their coincidence with pronounced vertical curves, all were such that in the original construction, the reconstruction and subsequent maintenance by the State certain standards in the prescribed specifications, indisputably recognized and called for in standard engineering practice, were, admittedly, departed from and not followed. Those, at the place in question, called for an increased width of pavement to twenty-four feet and a banking of about thirty-six inches, whereas the width was not increased and the banking was around eleven inches. The macadamized gutter, below and skirting the outside of the curve, was about four feet wide and concaved to a depth of four inches, and on its adjacent private property side were upward sloping banks of earth, and steps and driveways leading to residences. There was thus presented to east-bound traffic an appearance of roadway curve where the needed additional width of driving surface would appear to be supplied by the gutter, the use of which would inevitably cause a banking effect in the wrong direction even with permissible speed and momentum. The evidence fairly establishes that this situation was a cause of the accident. In answer to this the defense is that the specifications originally prescribed, in consonance with standard practice, were justifiably departed from because the immediate topography and the well built-up locale rendered it practical to do so, and that the warning sign it maintained, along with the self evident aspect of the attendant dangers, all were such as to absolve it from any liability due to accidents thereat. The weight of evidence demonstrates that it was easily possible and would have been practicable to have remedied the situation aforesaid and that such should have been done in the exercise of reasonable care for the safety of the traveling public. There is no sufficient evidence which justified the maintenance of the southerly gutter at and along and immediately adjacent the outer edge of the curve where, and in the immediate vicinity of which claimant's car left the highway. For aught that appears the vertical curves at the place referred to would, with a proper banking of the widened roadway, have sufficiently solved the problem of drainage. In view of the considerable number of prior accidents shown at this curve, many or most of which were, in part at least, evidently due to the aforesaid remediable defect or danger, and the varied, simple but ineffectual means the State had employed to diminish the danger and the knowledge thereof imputed to it by the numerous complaints made to its highway officials, we conclude that the preponderating weight of evidence establishes that the State was negligent in its construction and maintenance of the highway at the scene of the accident and that such was a cause thereof. (See Russell v. State of New York, 268 App. Div. 585.) The judgment of dismissal as to the claimant Edward Joseph MacDuff, Jr., should be affirmed, with a disapproval of such findings there made as absolves the State from negligence. The judgments as to the other claimants should be reversed and judgments directed in their favor, respectively, for the recovery of their damages in the following amounts, viz.: Jeanne C. Daudelin, $25,000; Marion MacDuff, nee Deyo, $25,000; John Clifford, $2,000; Robert Foley, $2,000; Edmund Daudelin, $250. As to the claim of Edward Joseph MacDuff, Jr., judgment affirmed, without costs, and in the decision of the court below Findings of Fact Nos. 20, 23, 24, 25, 27, 29, and 30, and Conclusions of Law Nos. I, II, III and IV, are disapproved; and the findings contained in the State's Requests to Find, viz.: Findings of Fact Nos. 22, 23, 26, 37, 47, 51, 52 and 53, and Conclusions of Law Nos. I, III, IV, V and VI, are disapproved; and the court makes a new finding of fact, viz.: that claimant was negligent in the operation of the automobile he was driving at the time of the accident and that such negligence was a cause of his injuries incurred therein. As to the claims of all other claimants: the judgments are reversed on the law and the facts, with one bill of costs to be divided among them, and judgments directed in their favor respectively, and in the following amounts as to each claimant, viz.: Jeanne C. Daudelin, $25,000; Marion MacDuff, nee Deyo, $25,000; John Clifford, $2,000; Robert Foley, $2,000; Edmund Daudelin, $250; and all findings of fact and conclusions of law in the court below inconsistent herewith are reversed and new findings made in conformity hereto, decisions hereon to be settled before a Justice of this court on ten days' notice. Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ., concur.