221 A.D. 671 | N.Y. App. Div. | 1927
The court has found each of the requests proposed by the claimant and has made its findings and decision in the exact words of the claimant’s requests, with the exception of the amount of damages. It found the following: On the 13th day of June, 1925, near mid-day, claimant was a passenger in an automobile intending to go from Saranac Lake to Montreal by way of Plattsburgh. The accident happened about ten miles southwest of Plattsburgh on a road maintained by the State under the “ gang system.” The highway is spoken of as running north and south, which is sufficiently accurate. Where the accident happened there was a depression in the road surface, about four feet wide, nine feet long and “ from three to six inches deep,” extending at about right angles from the west side of the macadam a little beyond the center thereof. Northerly from this depression there was a ditch, called a “ weeper,” dug through the shoulder to drain water from the macadam into the ditch west of the shoulder. This weeper was about one foot wide and six inches deep, with sharp abrupt shoulders. When the automobile in which claimant was riding ran through this depression, it “ swerved to the left; ” ran along the shoulder and struck “ the weeper;” turned to the right across the road; “ struck the guard; turned shaiply to the left and tipped over, causing injury to this claimant. * * * The highway where this accident occurred was not in a safe and suitable condition for public travel. * * * The State was negligent in the maintenance of said highway, which negligence was the approximate cause of the accident.” At defendant’s request the court made the
The court found that it was from 50' to 80 feet between the depression and the weeper into which the car ran when it ran into the guard rail and overturned. We disapprove of this finding of distance. The location of the depression and of this ditch through the shoulder was not disputed and actual measurements showed that the distance between the depression and this ditch was in excess of 110 feet. Moreover the finding of the court is that between the depression and the place where the car overturned was about 160 feet; and the car, after it struck this weeper, went but a short distance before it overturned.
While we think there is grave doubt whether the finding that the depression, at any point, was six inches deep is sustained by any preponderance of evidence, we pass it without further comment
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Cochrane, P. J., Hinman, McCann and Davis, JJ., concur.
Judgment reversed on the law and facts and new trial granted, with costs to the appellant to abide the event. The court disapproves the finding that between the depression and the weeper was a distance of fifty to eighty feet..