Claim No. 30673 | N.Y. App. Div. | Mar 24, 1954
—Claimant appeals from a judgment of the Court of Claims dismissing the claim brought by her to recover damages for the wrongful death of her husband. The accident, which resulted in his death, was unwitnessed and happened August 16, 1950, at about ten o’clock, on a clear and dry evening. Observable marks on the shoulder of the road indicated that, instead of completing a curve to the left, decedent’s automobile veered to the right from the pavement and continued in a straight path about one hundred feet to the intersection of Route 109 and a dirt road called Fifth Street in West Babylon, Suffolk County, Hew York. At the intersection the marks indicated that all four wheels were off the pavement. Claimant’s theory was that a large and dangerous hole in the dirt intersection and on the shoulder of the highway caused the vehicle to be diverted farther to the right so that, proceeding onward, it struck a catch basin curb and a wooden post supporting mailboxes. The post penetrated the windshield of the car, striking decedent, and presumably caused his death. From that point the automobile turned back to the highway and to the center mall, where it overturned. There was no evidence of any defect in the pavement of the highway which would have caused the vehicle to leave the paved portion, nor any reason, by way of emergency or otherwise, for deceased to have been driving along the shoulder. The cause of that can only be a matter of speculation and surmise. The existence, location and extent of the said hole were matters of controversy on the trial and presented a question of fact for the trial court. Passing upon such question the court found that the depression, if indeed it existed, was of such a character as not to have caused a loss of control of the car and that, in the exercise of prudent driving, decedent could have easily avoided it. Judgment unanimously affirmed, without costs. Present — Foster, P. J„ Bergan, Coon, Halpern and Imrie, JJ. [203 Misc. 297" date_filed="1952-12-22" court="None" case_name="Tomasetti v. State">203 Misc. 297.]