Backman v. State
67 A.D.2d 822
| N.Y. App. Div. | 1979

— Judgment unanimously affirmed, without costs. Memorandum: Claimant commenced this negligence action alleging that the State’s failure properly to inspect and maintain a public highway proximately caused the accident in which he sustained serious physical injuries. Following a trial on the issue of liability only, the Court of Claims determined that the State was negligent and also that claimant was contributorily negligent. Accordingly, the claim was dismissed. Claimant maintains on appeal that the court’s finding of contributory negligence is contrary to the weight of the evidence. The record discloses that claimant was operating a motorcycle with which he was unfamiliar and was traveling at about 25 miles per hour when he observed a shadow in the road about 20 feet ahead. He proceeded directly toward the shadow and when he was about two or three feet away, he realized that it was a pothole. The hole was found to *823have measured three feet in length, two feet in width and two to two and one-half inches in depth. Claimant drove through the pothole and lost control of the motorcycle which veered to the right and struck a concrete guardrail. The trial court found that claimant could have avoided the pothole with the exercise of due care and that his failure to take any action to do so constituted contributory negligence. In our view, the court’s finding is adequately supported and therefore it should not be disturbed (see Tyrell v State of New York, 6 AD2d 958; 7 Weinstein-Korn-Miller, NY Civ Prac, par 5501.20). (Appeal from judgment of Court of Claims — dismiss claim.) Present — Moule, J. P., Dillon, Hancock, Jr., Schnepp and Witmer, JJ.