191 Misc. 95 | New York Court of Claims | 1948
The claim herein has been filed for damages to claimant’s automobile and to its contents sustained at or about 12:30 a.m. on August 9, 1946, on a highway controlled and maintained by the State of New York and forming part of its patrol system on which claimant was traveling.
The record discloses: That on the day and at the time above méntioned, claimant was driving his 1941 Chevrolet five-passenger coupe, with its headlights lighted on the high beam, in a general easterly direction on New York State Highway No. 566, Route 43, also known as the Wolf Iiill-Berne State Highway in the town of Berne, Albany County, New York, and particularly at a point thereon which is just east of the hamlet of East Berne, New York; that said highway continues easterly from said point on a descending grade until it reaches another point where it makes a turn to the right, its direction then becoming a general northerly and southerly one; that at or near the point of said turn to the right, said highway forms an intersection with a town or county road which makes a juncture with it on the east side of the intersection; that said town or
Claimant alleges: “ That on August 9, 1946 said highway intersection was obscured from the west by a curve in the State Highway and by growing foliage and defendant had failed and neglected to supply, erect and maintain in place adequate or suitable signs, signals, lights • or other warning
There is no longer any question concerning the duty of the State to erect proper and adequate warning signs, and if their absence is the proximate cause of injury to persons or property, the State is liable for the resulting damage. (LeBoeuf v. State of New York, 281 N. Y. 737.)
It is not denied by claimant that the two signs located to the west of the culvert were in place on the morning of the accident. With reference to them he says merely: “'I don’t recall the slow sign which is located about 50 feet further td. the east. The only sign I remember is the warning sign, warning with the arrow pointing to the right on the curve ”. (S. M. 15, 16.) Claimant was bound to see the “ Slow ” sign just ás he saw the “ Curve ” sign. He was bound to see what, by the proper use of his senses, he might have seen. The statement that a witness does not see what he should have seen is incredible as a matter of law. (Weigand v. United Traction Co., 221 N. Y. 39, 42.)
The State Traffic Commission, under authority of section 95-h of the Vehicle and Traffic Law of the State of New York, adopted, on October 20, 1936, effective December 16, 1936, and in effect on the day of the accident herein, what is designated as its rule No. 1 which, at all times herein mentioned, read as follows: Eule No. 1. Every driver of a vehicle upon a public highway shall comply with the instructions conveyed by any stop, speed, slow, caution, movement, alignment, exclusion, restriction, parking or other regulatory sign, signal or marking established or maintained by or with the authority of the State Traffic Commission.” Proof of the due adoption of said rule by the State Traffic Commission was adduced by the claimant upon the trial. It was incumbent upon the claimant to have complied with the provisions of the foregoing rule and to have obeyed the instructions conveyed by the signs herein described. It does not appear that claimant slowed down the speed of his automobile between the time that he observed the u Curve ” sign and the time of the happening of the accident, except that we
We are of the opifiion that it was the negligent manner in which claimant operated his automobile which caused said accident, or contributed, as a proximate cause, to its happening, and that without said negligence of the claimant the accident with the resulting damage to claimant could not have happened. (Sturman v. State of New York, 244 App. Div. 865, affd. 269 N. Y. 627, motion for reargument denied 271 N. Y. 547; cc Sturman v. New York Central R. R. Co., 280 N. Y. 57; cc Sturman v. New York Central R. R. Co., 283 N. Y. 709; Ruggiero v. State of New York, 256 App. Div. 437.)
In view of our determination herein we do not discuss the items of damage alleged in the claim, although, as a matter of f'aet, there is no dispute as to their extent and amount.
Claimant has failed to prove facts sufficient to constitute a cause of action against the State, and his claim herein must be and hereby is dismissed upon the merits. ■ Decision accordingly.