203 A.D. 339 | N.Y. App. Div. | 1922
Lead Opinion
The claim is prosecuted by Frank Best, as administrator of William Best. On the 14th day of June, 1919, in the middle afternoon, William Best was riding in an automobile bus, passing upon the highway from Hudson to Philmont in Columbia county. The bus swerved to the right and went down an embankment. William Best was injured and died on the next day. At the place of the accident and for some distance on either side the road is straight and level. It has a macadam surface fourteen feet in width, on either side of which is a dirt shoulder four feet wide, making the width twenty-two feet. On one side of the road the adjoining land is slightly rising. On the other side there is a steep decline of about eight feet, the upper half of which is a dirt surface and the lower half a retaining wall. A short time before the accident, the shoulder having become worn, the State had filled in this shoulder with loose gravel to keep the surface smooth and level with the macadam. The court makes a finding as follows: “ When the steering gear of the bus broke the driver of the bus lost control of it so that it could not be guided. He applied both his foot and emergency brakes, but
Section 176 of the Highway Law (as amd. by Laws of 1916, chap. 578)
It was not negligence upon the part of the State or its representatives to put loose gravel upon the shoulder of the road. It was but performing its duty when it filled in the worn places along the side of the road to protect the traveling public from dangers due to the dirt surface being below the macadam surface, or to an uneven surface, and the omission to roll down the gravel sufficiently hard to sustain the bus was not negligence.
The chief question arises as to whether or not the State should have erected barriers. In this case the circumstances are very similar to those in Dorrer v. Town of Callicoon (183 App. Div. 186), where the court cites controlling authorities and concludes that there was no duty to guard the highway with a barrier', where the road was substantially straight, the width of the entire surface about the same as in this case at bar, the margin plainly discernible, but there was a perpendicular drop of three and one-half feet and a further drop of eight feet at an angle of forty-five degrees; the automobile collided with a light wagon, was diverted from its course and ran off the embankment. Here the steering gear broke and in consequence the driver could not guide or control the course of the bus. It gradually swerved to the right from
The court was justified in finding that negligence on the part of the State or its agents was not the cause of the death of William Best. The judgment should be affirmed, with costs.
H. T. Kellogg, Acting P. J., Kiley and Hinman, JJ., concur; Hasbrouck, J., dissents.
Since amd, by Laws of 1922, chap. 371.— [Rep.
Dissenting Opinion
The point of the accident was a much-traveled highway in the village of Mellenville. The road running east and west was straight for one hundred feet at the place of the accident. On the north side of the road there was an abrupt decline from the edge of the shoulder of some eleven or twelve feet at the lowest point. The declivity continued along the road for one hundred and thirty-five feet. The macadam was fourteen feet wide. The shoulder on the north was four feet wide. The road and shoulders twenty-two feet wide. Between the macadam and the shoulder which had worn away, the State had placed gravel some four or five inches thick. On June 14, 1919, claimant’s intestate was riding in the bus traveling between Hudson and Philmont. In Mellenville the chauffeur undertook to stop his bus and found the steering gear broken. The
I think it is clear that the place was dangerous and that it was rendered more dangerous by the presence of such a depth of gravel. There is nothing unusual in the breaking of the steering gear of an automobile. It is likely to happen to anybody and at any place. Itc happened here where anybody could see that if an auto became unmanageable the traveler was immediately in danger from this embankment. The omnibus sank in the gravel to the top of the embankment which started at the road’s edge and toppled over. If there had been a guard rail or barrier there, claimant’s child would not have been killed. The barrier would have kept the wheels straight and not allowed the front ones to turn down the embankment.
The judgment should be reversed. (Nicholson v. Town of Stillwater, 208 N. Y. 203; Wallace v. Town of New Albion, 121 App. Div. 66; affd., 192 N. Y. 544; Dorrer v. Town of Callicoon, 183 App. Div. 186; Newell v. Town of Stony Point, 59 id. 237; Sweet v. Perkins, 196 N. Y. 485; Ivory v. Town of Deer park, 116 id. 476; Ring v. City of Cohoes, 77 id. 83.)
Judgment affirmed, with costs.