Walker v. State , 2 N.Y.S.2d 477 ( 1937 )

Cunningham, J.

An automobile owned and driven by George A. Earl, Jr., collided with one owned by Willard Scammell and driven by his son, Floyd Scammell, at a railroad underpass on a State highway at seven-thirty p. m. on October 5, 1935. Belva Vande Walker was riding with Scammell. She has recovered for the personal injuries sustained by her in the collision. Awards have been made to Earl and Scammell for the damage to their automobiles. The State has appealed.

The claimant George A. Earl, Jr., was driving easterly on State highway route 20. A mist was falling and the surface of the roadway was damp. The highway runs through an underpass under the tracks of the Delaware, Lackawanna and Western railroad, about a mile and one-half east of the village of La Fayette. There is a hill leading down to the underpass and commencing about one-fourth of a mile westerly thereof. The roadway is twenty feet wide. The roadway at the curve immediately west of the underpass is banked, the outside edge being fifteen to eighteen inches higher than the inside. The roadway is twenty-oné and three-tenths feet wide at the middle of the curve and twenty-four feet wide in the underpass.

When Earl had gone down the hill and rounded the curve, he could see the abutments of the underpass at a point about one hundred feet distant therefrom. At this point he noticed the Scammell car coming from the opposite direction toward the underpass. Earl did not know whether the roadway in the underpass was wide enough to permit the two cars to pass so he applied his brakes and attempted to stop. His car skidded and got out of control and ran across the road and into the Scammell car.

The ground of negligence upon which the claimants base their claims is that the agents and employees of the State failed to erect and maintain suitable warning signs visible both by day and night on a steep hill, sharp curve and underpass. At the time of the accident there was a sign at the top of the hill six hundred and forty-seven feet from the underpass on the side of the road on which Earl was traveling, and seven feet eight inches from the southerly edge of the roadway. This sign stated “ Warning — Curve.” There was also a sign four hundred and ninety-eight feet, four inches west of the underpass and seven feet, two inches from the side edge of the road. This sign had on it the words “ Caution — Sharp Curve — Narrow Underpass.” The abutment waUs were painted white and were visible at night to a driver approaching from the west at about one hundred feet from the underpass. Earl said that he did not see the curve and caution warning signs; that he did not have a double windshield wiper and that consequently he could not see through the right-hand side of the windshield which was covered with moisture from the mist.

In its opinion the Court of Claims held that the State was liable because it failed to place a reflector sign or signs at the beginning of the sharp curve and the deep cut approaching the underpass, and that the absence thereof was negligence on the part of the State.

The head lights of a motor vehicle must give sufficient side illumination to reveal a substantial object ten feet from the side of the vehicle. (Vehicle and Traffic Law, § 15, subd. 3.) Therefore, the curve and caution warning signs being less than ten feet from the roadway, would be visible under ordinary conditions to the operator of an automobile approaching from the west at night.

The State had erected signs sufficient to warn persons operating automobiles over this road in the night time that there were curves and an underpass ahead at this point. Such signs were observable in the night time under ordinary conditions. Therefore, the State may not be held to be negligent because signs of a different type were not erected. (Elansky v. State of New York, 133 Misc. 331; affd., 226 App. Div. 713.)

The Court of Claims has found that the absence of reflector signs was the proximate cause of the accident.

Earl testified that at the top of the hill he noticed that the road was going down grade; that there was a curve and that he could not see beyond the turn of the curve. He was traveling twenty-five to thirty miles an hour and slowed down to a certain extent. • He saw the curve before he started down the hill. It then became his duty to slow down. (Vehicle and Traffic Law, § 67, subd. 1.) This statutory requirement was intended to direct the driver of a motor vehicle approaching a curve at which he could not see the road ahead beyond the turn, to bring his car under such control that he would be prepared to stop if danger suddenly confronted him when he rounded the curve. (Herbert v. Smith Paper Corp., 243 App. Div. 260.)

Earl did not need any highway traffic sign to warn him that there was a curve ahead and that he could not see the roadway beyond the turn of the curve. He observed that as he was about to start down the hill. If there had been a reflector sign at the top of the hill it is not probable that he would have heeded its warning to use caution any more than he did the command of the statute to do so.

The roadway through the underpass was wider than the roadway on which Earl was traveling. It was not necessary for him to attempt to stop when he saw the on-coming car as the roadway was of sufficient width in the underpass to permit two cars proceeding in opposite directions to get clearance and pass in safety.

The immediate cause of the accident was the skidding of Earl’s car. There was not any causal connection between the skidding and the absence of reflector signs, and the absence thereof was not a contributory cause of the accident.

The findings that reflector signs should have been erected by the State and that the absence thereof was the proximate cause of the accident; that the State and its employees were negligent and that such negligence was the proximate cause of the accident, are contrary to and against the weight of the evidence. (Shaft v. State of New York, 239 App. Div. 144; affd., 264 N. Y. 625; Berges v. State of New York, 245 App. Div. 792.)

Each judgment should be reversed upon the law and the facts, with costs, and each claim dismissed.

In Vande Walker action: All concur, except Lewis, J., who dissents and votes for affirmance in an opinion. Present — Sears, P. J., Edgcomb, Lewis, Cunningham and Taylor, JJ.

In Scammell action: All concur, except Lewis, J., who dissents and votes for affirmance in an opinion. Present — Sears, P. J., Edgcomb, Lewis, Cunningham and Taylor, JJ.

In Earl action: All concur, except Lewis, J., who dissents and votes for affirmance in an opinion. Present — Sears, P. J., Edgcomb, Lewis, Cunningham and Taylor, JJ.