25 Misc. 2d 907 | New York Court of Claims | 1960
This is a claim to recover for serious personal injuries and automobile damage sustained by the claimant on July 15, 1956, at about 4:00 a.m., when the automobile he was driving southerly on State Highway, Route 9W, near Marlboro, Ulster County, collided with a quantity of debris which State employees, allegedly, had permitted to remain upon the highway at its junction with a town road known as Purdy Avenue. The debris consisted of dirt, gravel and stones which had been washed by rain easterly and down Purdy Avenue and on to the State highway, at a lower elevation.
The evidence established that rains had washed the debris down Purdy Avenue and on to the west side of Route 9W on the two days prior to the accident. The debris constituted an obstruction in the southbound travel lane to varying extents, up to about one half the width thereof. In addition, a short distance northerly thereof, and, beyond a bend in the highway, on the west side of said Route 9W, a quantity of rock had fallen from a bank and had come to rest in the same traffic lane, and, it, likewise, constituted an obstruction to free passage over the westerly side of the highway. The rock slide was removed by a State highway maintenance crew during the evening of July 13, but, the crew failed and refused to remove all the debris from the highway where it had been deposited by the run-off from Purdy Avenue although the members of the crew had notice and knowledge thereof, and, to this, there was added
It is no sufficient answer for the State to point to the town as the culpable party for failing to keep Purdy Avenue in good repair and properly maintained and free of debris which could be washed down to the State highway. The State, on its part, had the duty to correct the condition that existed and to maintain the roadway in a reasonably safe condition, and, if it was unable to do so, then the obligation existed to give warning commensurate with the danger (Barna v. State of New York, 267 App. Div. 261, affd. 293 N. Y. 877; Miller v. State of New York, 231 App. Div. 363). This duty is nondelegable (Turner v. City of Newburgh, 109 N. Y. 301). The State failed to do its duty and such was a proximate cause of the accident (Battistoni v. State of New York, 1 A D 2d 926) for which it may be held liable (Dunn v. State of New York, 52 N. Y. S. 2d 128). The State had actual notice of the debris which was left by its crew when it abandoned the work of cleaning the highway on the 13th, and, it is chargeable with notice of the addition thereto on the 14th by reason of the evidence of the frequency with which the condition had occurred in the past and the frequency of patrols over