173 Misc. 903 | New York Court of Claims | 1940
On January 6, 1936, Frank R. Hall was fatally injured when a light truck which he was driving slid off a dirt road into the old Erie canal. There were no eye witnesses to the accident, but it appeared that deceased was driving over a dirt fill in the Erie canal on his way to Lock 18 on the Barge canal, and when he attempted to make a right-angle turn onto the towpath between the Erie and Barge canals his truck went down the sloping bank of the fill and crushed him beneath it. The lock to which he was driving is in German Flatts, N. Y., and is the property of the State of New York. There is a dirt road which runs from State Highway Route 5-S north across the West Shore Railroad tracks to the fill, over the fill sixty-five or seventy feet, and thence along the towpath 1,550 feet. On the day of the accident the dirt road was icy, and there were no warnings or guard rails. The road was for the use of employees of the State and for such other persons who were invited to use it and was maintained by the State Division of Canals; it was not part of the State highway system.
Returning from the lock after taking his father to work about two-thirty p. m. on the day in question, Raymond Pendergrass discovered Frank Hall’s truck on the ice in the Erie canal with Hall still in it. He secured help to raise the truck and to carry Hall to the shelter and called an ambulance, which rushed Hall to the hospital, where he died at three-forty-five p. m. from laceration of the brain.
His widow brought this suit as administratrix of his estate, charging that the State was negligent in the construction and maintenance of its road to the lock and that the decedent’s death was the direct result of the State’s failure to make the roadway reasonably safe. For the purpose of this suit the State’s liability for damages must be measured by the same standards that apply to individuals and corporations. (Canal Law, § 120.)
An important feature of the present case is the status of the deceased. Was he on the State’s road as a licensee or as an invitee? The witnesses for the claimant and those testifying for the State disagree upon whether or not on January 6, 1936, there was a sign, maintained by the State, at the junction of Highway 5-S and the dirt road to Lock 18, which read, “ Barge Canal, Lock 18, Visitors
The claim must be dismissed on the merits.
Fbed M. Ackebson, official referee, acting as judge, concurs.