284 A.D. 1014 | N.Y. App. Div. | 1954
—Appeals from (1) a judgment of the Court of Claims dismissing the claim of Lyra C. Brown; and (2) that part of a judgment of the same court which dismissed the claim of Lyra 0. Brown, as administratrix of her husband’s estate, except for the sum of $400 damage to an automobile owned by the deceased husband. The State appeals from the latter claim insofar as it awards the sum of $400 to claimant. These cases have previously been before this court and a new trial ordered (279 App. Div. 958). Claimant, Lyra C. Brown, was driving an automobile, owned by her husband, in a westerly direction on a newly constructed section of a concrete State highway when she lost control of the vehicle and it crossed to the south side of. the highway, went down an embankment, and caused severe injuries to claimant. Although the road was open to traffic in both directions, the north shoulder of the highway was uncompleted, soft, uneven and, in places, was several inches below the level of the concrete. As claimant driver was proceeding at a moderate rate of speed on the concrete, she observed another car alongside of her ear proceeding in the same direction and close to her vehicle. She turned somewhat to the right and, as the other car passed, it cut closely in front of her, forcing her to turn more to the right and on to the north shoulder to avoid a collision. In attempting to remount the concrete pavement the right front wheel of her vehicle caught the edge of the concrete in a manner which caused her to lose control. The Court of Claims has found that the State was negligent in maintaining the highway and permitting claimant to travel upon it under the existing conditions. The evidence supports such a finding. The court found, however, that claimant failed to establish freedom from contributory negligence, and for that reason dismissed her individual claim and a portion of her claim as administratrix. We think such a finding is contrary to the evidence. While the lower court found that claimant driver did go on to the shoulder and that the condition of the shoulder at the edge of the concrete caused her to lose control, the court felt that the evidence failed to establish that claimant was forced to the shoulder by another vehicle but drove upon it negligently. Claimant described in detail the manner in which she was forced to the shoulder, or was confronted with a situation which caused her to think that the safer thing to do. Her testimony was not directly controverted. There was considerable evidence from the occupants of vehicles proceeding in the opposite direction that one or more westbound ears were in the immediate vicinity at the time. The road was straight and there is no evidence that claimant’s attention was diverted, that her car was not under control, or that there was any reason for her to leave the pavement except the circumstances which she described. Mere mathematical calculations based upon the distances between various cars in the vicinity, hastily estimated by an oncoming motorist, are insufficient to overcome the evidence supporting claimant’s version of the accident. The State has been held liable in a number of eases under similar circumstances. (Goodwin v. State of New York, 274 App. Div. 824, affd. 298 N. Y. 873; Taylor v. State of New York, 262 App. Div. 657, affd. 288 N. Y. 542; Schill v. State of New York, 258 App. Div. 769.) Lyra C. Brown was driving the automobile of her husband, Mayo Brown, who was not present in the ear, and she was not operating the car for his business or benefit. The lower court has granted judgment in Claim No. 28838 for the stipulated damage to the ear, but has dismissed that part of the