195 Misc. 38 | New York Court of Claims | 1949
At a point in the hamlet of Granby, Oswego County, 3 miles west of Fulton, New York, State Highway No. 3 intersects county road No. 8 at right angles. At 10:30 on the night of July 29, 1947, an automobile driven by the claimant’s intestate, Otto Nuss, was proceeding easterly on the State highway when it collided at that intersection with an automobile driven by Jay Sawyer, which was proceeding southerly on the county road. Nuss was alone at the time and was killed instantly.
Route No. 3 approaches the intersection at a slight down grade after a curve and a dip about 350 feet to the west. County road No. 8 is slightly down grade through the intersection and drops off sharply to the south. An abandoned gas station stands on the northwest corner and trees, grass, shrubs and other intervening causes, restrict visibility from the north and west. The evidence describes a hazardous intersection and establishes that State highway No. 3 was a heavily traveled and officially designated “ Thru Traffic ” route. The only warning of the intersection to a vehicle approaching from the north, was a standard “ Stop, Thru Traffic ” sign, which had been erected by the State prior to September 18, 1944, and had thereafter
By article 7 of the Vehicle and Traffic Law the Legislature created the State Traffic Commission and prescribed its functions. By section 95-d of that article, it is provided that “ The state traffic commission may in its discretion order erected and maintained on any or all roads or highways which intersect a state highway, suitable signs, signals and markings warning drivers of vehicles of such intersection, directing such drivers to bring such vehicles to a stop before entering or crossing such state highway or regulating traffic entering such state highway. Such signs, signals and markings shall be erected at or near the intersecting line of such state highways and shall be plainly visible at all times for a distance of at least fifty feet.” The traffic control signal herein involved was erected pursuant to the statute for the purpose of regulating cross traffic on the county road at its intersection with the State highway. Its sole purpose was to protect the intestate, and others similarly situated, from accidents at this intersection. (Steits v. City of Beacon, 295 N. Y. 51, 56.) The statute authorizing its installation provided for maintenance by the State of such sign and of the surrounding terrain to insure at least 50 feet visibility to the north. Upon erecting the sign, this then became the State’s duty.
We think conduct which has proceeded to such a stage that inaction would reasonably result in positive injury, procreates a duty to go forward. Condonation of failure to so proceed, would seem to constitute an unreasonable aberration. “It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting
The evidence supports the conclusion that the efficacy of the sign, during the nighttime at least, for several months prior to the accident, was tantamount to no sign at all. Thus, traffic upon the State highway was invited into the intersection with no regulation of cross traffic on the county road. The intention of that portion of section 95-d of the Vehicle and Traffic Law, relative to compliance with stop signs, is to notify a motorist that he is approaching an intersection and to require him to stop his vehicle at or close to the place where he would naturally enter the intersection. (People v. Ubertini, 182 Misc. 634.)
Claimant’s intestate had the right of way because he was approaching from Sawyer’s right (Vehicle and Traffic Law, § 82, subd. 4) and because Sawyer was entering the State highway from an intersecting county road against a stop sign (Vehicle and Traffic Law, § 95-d). A right of way is not inflexible and absolute. It will establish precedence when rights might otherwise be balanced. It is one of the factors to be considered by the triers of the facts. Priority in time in reaching the intersection is also only one of the elements to be considered in determining the reasonableness of the care exercised. (Geyer v. International Ry. Co., 210 App. Div. 574, affd. 240 N. Y. 626; Dorochuk v. Skrobot, 231 App. Div. 660, affd. 257 N. Y. 530.) “ Every crossing accident differs; speed, surroundings, relative distance from the meeting point, all play an important part in determining reasonable care ”. (Cherubino v. Meenan, 253 N. Y. 462, 465; Baker v. Close, 204 N. Y. 92.)
If Nuss was cognizant of the stop sign, his care at the moment was measured on the assumption that he was traveling on a through way and the sign was in effective operation. (Foley v. State of New York, 265 App. Div. 682.) Under such circum-
Here was an executive of a large plant engaged in conveying his wife and children home from a Bible conference, in the nighttime, along a strange county road. He observed the school sign which was properly erected and maintained. He may have used poor judgment after first acquiring knowledge of the Nuss car, in attempting to beat it across the intersection, but such conduct in an emergency may be consistent with reasonable care. (Leslie v. Robinson, 293 N. Y. 911; Van Dusen v. State of New York, 112 Misc. 15, 18.) The potencies of protection that reside in proper warning have illustration in the case at hand. If Sawyer had seen the sign, it is improbable that he would have driven into the intersection. Had this sign been properly maintained and visible to him at least 50 feet to the north on that occasion, he would have had approximately 150 feet in which to obey its mandate. It is apparent that its uselessness for its intended purpose not only contributed to the accident, but that it was readily foreseeable, if not inevitable, that such an accident would occur under the situation which had been allowed to exist.
The State suggests its own exoneration by reason of intervening negligence. It is well established that where harmful consequences are brought about by intervening and independent forces, the operation of which might reasonably have been foreseen, there is no break in the chain of causation of such character as to relieve the actor from liability. (Carlock v. Westchester Lighting Co., 268 N. Y. 345, 350; 45 C. J., Negligence, § 495; Restatement, Torts, § 449.) Under the circumstances, we find no evidence sufficient to conclude that Sawyer’s negligence was of such an extraordinary nature as to constitute a superseding cause. The chain, or net of causation, remained unbroken and any negligence of his does not relieve the State
The burden of proving contributory negligence is on the State. (Decedent Estate Law, § 131.) Claimant, in this case, is not held to the high degree of proof required in a case where the injured person can himself describe the occurrence. (Nose-worthy v. City of New York, 298 N. Y. 76.) The only disinterested eyewitness testified the Nuss car "was traveling on its own side of the road at a moderate speed. Upon all the evidence, we find the State has not sustained its burden.
In the accompanying decision, an award has been made to claimant for the pecuniary loss she has sustained.