Brand v. State
250 A.D. 810
N.Y. App. Div.
1937
Check Treatment

Separate appeals by the claimants from separate judgments rendered by the Court of Claims dismissing the respective claims for negligence, which were tried together. On April 3, 1935, claimant, John T. Brand, was a passenger in an automobile driven by Harold B. Herrick, deceased; they were proceeding westerly along a State highway known as the SloansvilleCharleston, part 2, State highway, route No. 148, in the town of Charleston, Montgomery county. At approximately the low point in the road there existed a culvert designed to carry surface water from the south to the north; the culvert had become clogged with ice formed by snow melting in the fields south of the road, so that the water overflowed a portion of the road at this point. Each claim states that the negligence of the State, its officers, agents and employees, consisted among other things, in constructing and maintaining the said highway, sluices, drains and culverts so as to permit water to form a pool completely covering and running over the surface of the highway; in permitting said condition to exist for a long period and in failing to give adequate warning thereof. The court below found that there is insufficient evidence in the record upon which to make a finding that the accident was caused or contributed to by the negligence of the State, its officers, agents or employees; that the direct and proximate cause of the accident was the careless and negligent manner in which *811the car was being driven and that the claimants have failed to establish facts sufficient to constitute a cause of action against the State of Hew York. The court in its opinion pointed out that the date of the accident is outside the period for which the State is liable for damages suffered by any person because of defects in highways. (Highway Law, § 58, formerly § 176.) Judgments unanimously affirmed, with one bill of costs to the respondent, against the appellants. (Hinds v. State, 264 N. Y. 525.) Present — Hill, P. J., Rhodes, MeHamee, Bliss and Heffernan, JJ.