Kenton v. State ( 1967 )

Reynolds, J.

Claimant appeals from a judgment of the Court of Claims dismissing her claim in a negligence action against the State, following a trial.

The court has found “ that the sole proximate cause of this accident was the negligence of the claimant in operating her automobile at an excessive and dangerous rate of speed for the highway condition prevailing at the time of the accident ” and further that, ‘‘ claimant has failed to establish that the State was negligent or that any act or omission on the part of the State caused or contributed to the cause of this accident ”. We agree and affirm.

■Claimant herein sought to recover for personal injuries received in a motor vehicle accident which occurred shortly after 4:00 p.m. on February 15, 1959 between Liberty and Fern-dale, New York, on Route 17, at that time a two-lane highway. The evidence showed that in the morning of that day it was clear, cool and dry along this stretch of highway, but that between 2:00 and 3:00 p.m. the weather changed and it became cloudy and misty and the road surface became wet. There was credible evidence which the trier of the facts could accept that the wet condition of the highway had changed to generally icy condition prior to the crash, at the site of accident and for a substantial distance to the north and south thereof. There were other accidents and ears skidding from the highway both north and south of this accident. The claimant had left Grossingers to proceed to New York City shortly before 4 o’clock. A disinterested witness who preceded her on the same route from Grossingers testified that the highway was generally icy between Grossingers and the scene of the accident and she was driving slowly. That as she came to a descending grade, the site of the accident, she saw that ahead of her it was a sheet of ice and accordingly she slowed her car down. That as she was proceeding very slowly down this grade, she heard a horn blow and the car driven by the claimant pulled out to pass her and then started swerving and skidding and went off the left side of the highway into a tree. There were two passengers in claimant’s car who were not produced at the trial. The claimant admitted a speed of at least 30 miles per hour, and apparently failed to observe the icy condition ahead and to slow down as the witness did, but pulled out and went past her. The court could well find on this state of the record that claimant was driving at a^speed too fast for the conditions, and that she was not maintaining a proper lookout, thereby failing to sustain her burden of proving her freedom from contributory negligence. The issue of contributory negligence is peculiarly within the province of the trier of the facts. (Tyrell v. State of New York, 6 A D 2d 958; Bruce v. State of New York, 3 A D 2d 793, 794; Collins v. City of New York, 263 App. Div. 893; Mieuli v. New York & Queens County Ry. Co., 136 App. Div. 373; Holpp v. Carafa, 8 A D 2d 617.) A responsibility rests upon the operators of motor vehicles, who venture on our highways in the wintertime in this geographical latitude when hazardous conditions prevail rather frequently, to take into consideration the fact that such conditions as were present here are likely to occur and to operate their vehicles with due caution accordingly. Additionally, the trial court could find that the claimant had failed to establish that the State was negligent or contributed to cause the accident. (Gambino v. State of New York, 28 A D 2d 629; Meshurle v. State of New York, 25 A D 2d 709; White v. State of New York, 11 A D 2d 871; Quigley v. State of New York, 281 App. Div. 185, affd. 308 N. Y. 846.)

Claimant’s attorney sought to introduce a statement given by the disinterested witness to an investigator for the Attorney-General’s office for the purpose of impeaching her testimony. This was excluded on the ground that it was part of the work product of the Attorney^General and it is urged that this was error. This statement was, however, properly excluded because no proper foundation was laid for its reception and further, assuming that it should have been received, our inspection of the original produced by the Attorney-General and stipulated by the parties, satisfies us that it did not contradict the witness’ testimony. Indeed the witness’ statement “ that the road was quite slippery due to ice patches and had been since I left Grossingers ”, was far more damaging to claimant than was her testimony at the trial. Furthermore, even if error, it was not prejudicial error.

The judgment should be affirmed.