Opinion
January 30, 1962
Present — Bergan, P.J., Coon, Gibson, Reynolds and Taylor, J. [ 26 Misc.2d 367.]
Appeals by the State of New York from two judgments of the Court of Claims rendered in favor of claimants after a joint trial of their personal injury and property damage claims. On November 4, 1956 at about 8:30 P.M. claimant Jerry was operating her motor vehicle, in the rear seat of which claimant Falkowski was riding as a passenger, southerly at a rate of speed between 45 and 50 miles per hour on a town highway known as Gravel Pit Road in the Town of Peru, Clinton County, New York. This highway intersected and terminated at State highway Route 22 which ran easterly and westerly thereby forming a so-called T intersection. The paved surface of each was macadam. Mrs. Jerry testified that at a point some distance north of the intersection she observed a fog bank approximately 400 feet ahead whereupon she decelerated the vehicle to a speed of about 30 miles per hour and using the edge of the highway pavement as a guide proceeded into the fogbound area which extended about 150 feet north of the intersection. Her further testimony was that when she had reached the center of Route 22 which was about 22 feet in width she, for the first time, became aware of the T intersection and her presence in it whereupon she applied its brakes but was unable to stop the vehicle which proceeded in a southerly direction across the remaining pavement of Route 22 and an adjoining ditch and at a point opposite Gravel Pit Road down an adjacent steep embankment. Strands of barbed wire strung on wooden posts ran along the southerly side of Route 22 opposite the intersecting highway but no guardrails had been erected there by the State. It appears that in 1942 the Department of Public Works of the State had erected a reflectorized Stop sign on the west side of Gravel Pit Road about 100 feet north of the northerly edge of Route 22. There was evidence that the sign had become detached from its metal standard sometime prior to the accident and was not in place on its date. An attorney at law who resided at the northeast corner of the intersection testified that on the day before the occurrence in question he had found portions of it in a nearby field and had reported in writing the circumstance to the State Traffic Commission. He stated that the sign was replaced after the date of the accident. There is further testimony by the same witness of the occurrence of two prior accidents, one happening "on a similar dark foggy night", in which as in the instant case the motor vehicles involved proceeding southerly on Gravel Pit Road had crossed Route 22 and gone down the same embankment. The issues of negligence and contributory negligence were factual ones for initial determination by the Trial Judge. Under the circumstances here shown we cannot say that his conclusion that claimants were not guilty of contributory negligence and that the negligence of the State in failing to give adequate warning of the T intersection to the driver of the car and to erect and maintain suitable guardrails and signs on the south side of Route 22 at a point opposite Gravel Pit Road was the sole proximate cause of the accident is against the weight of the evidence. ( Canepa v. State of New York, 306 N.Y. 272; Ziehm v. State of New York, 270 App. Div. 876.) Judgments unanimously affirmed, with one bill of costs.