Huston v. County of Chenango , 1 N.Y.S.2d 252 ( 1937 )

McNamee, J.

(dissenting). Jacob Lord and his wife, with five children, were on their way to a party at the home of a Mr. Springsteen on October 25,1933, about seven-thirty o’clock in the evening, in an Overland automobile. Rain had fallen in the afternoon, and this turned to sleet in the evening. Not knowing the exact location of Mr. Springsteen’s house, after traveling several miles inquiry was made at the home of Mr. Warner, where it was learned that they had gone beyond then destination. Evidently for the purpose of turning around, the car was driven into an ascending driveway leading to a barn, was backed out of the driveway onto and across the road, and down a bank into the Susquehanna river. All of the occupants were drowned. One of these was plaintiff’s intestate, fourteen years of age, on account of whose death this action is brought.

The road was a county highway extending along the Susquehanna river for many miles, and at the place of accident was twenty feet wide, with a macadam pavement of twelve feet, a shoulder on the upland side of about five feet, and on the river side of three feet. The driveway from the barn widened at the highway to about twenty-four feet. On the river side of the highway was a precipitous bank extending from the edge of the shoulder to the water which was five or six feet deep. This highway had been improved ten years before, was much traveled, and no guard rail or fence had been erected at this point.

The accident was unwitnessed. Apart from the presence of the car and its occupants in the river, only a few facts were established from which legitimate inferences may be drawn as to the actual happening. It was necessary for the driver to turn around and retrace a part of his course. The automobile and its occupants weighed about 2,800 pounds. When taken from the river, the car was in low gear, and the brakes were in a “ set ” position. The car had a two-wheel brake mechanism which was so out of repair that the car was practically “ without brakes.” The road and the driveway were of ample dimensioiís for turning out of the driveway into the road in either direction, and had been used for that purpose by Mr. Warner for many years without mishap. Additional facts to support any theory of what happened must be inferred from testimony describing the automobile tracks.

The evidence shows that these tracks led up into the ascending driveway a considerable distance, and then back to the highway, across the highway and shoulders at an angle with the road, and down the bank. The grass and the weeds on the shoulder and bank gave indication that the wheels were probably turning forward during the descent, as the clear evidence is that the brakes would not “ hold ” the rear wheels. There is no evidence that the driver was familiar with the locus in quo, or that the private driveway was used by the public, or that such use was invited or authorized.

It is upon this showing that plaintiffs contend that the intestate came to her death because of the negligence of the county in failing to maintain a guard fence where the car went down the bank, and that the death of the intestate was due to that negligence. In my judgment, this position is not tenable. There is no proof to show that the driver did not commit some mistake or did not suffer some personal mishap while operating the car, or to show there was not some failure in the mechanism, that brought about the accident; nor is there any proof to show the rate of speed at which the car came to the edge of the bank. The evidence does show, however, that the car backed down an incline, crossed the edge of the bank at an obtuse angle, and that it was devoid of effective brakes. Thus there is no showing that the absence of the fence entered at all into the cause of the unhappy event; and equally there is no proof that the presence of an ordinary highway fence would or could have prevented the descent of the car, even if there were a legal obligation on the county to provide such a barrier as is commonly used.

Statements are found in cases to the effect that the public authorities have a duty to erect and maintain guard rails, or other suitable warnings, for the protection of travel generally on the highways, against danger so close to a highway as to make travel thereon perilous, or where there are exceptional conditions requiring such protection. (Flansburg v. Town of Elbridge, 205 N. Y. 423, 429.) It has been said in some cases, as it is being said in the majority opinion here, that conditions have changed since the automobile has come into general use, that better roads have been provided, that greater speed is practiced, and that more urgent need has arisen for barriers to keep vehicles from running off the road. (Carner v. Town of East Greenbush, 225 App. Div. 609, 611.) But a careful examination of the decisions of the Court of Appeals in comparable cases does not disclose any change in the law, or in its application by that court. No case is cited where our court of last resort has laid down any new rule in this particular, nor in which it has held that the State or municipality must maintain barriers to keep vehicles from running off the road into ditches or down banks, when they are traveling over that part of the road prepared and maintained for public travel.

If a change in the law be developing, and a new rule is to be applied, what is to be the standard of the proposed barrier? It would be difficult indeed to prescribe a guard rail or fence or other reasonable highway barrier that would meet the variable demand. Practically all automobiles are heavy vehicles (despite the idiomatic reference to “ light ” cars), and they vary widely in weight and carrying capacity. A barrier that might be thought reasonable, and that would effectively resist the shock of contact with a so-called light automobile weighing a ton, would be evidently inadequate and useless if the contact were made by a loaded truck representing a weight of twenty tons. And this constantly changing requirement, due to weight alone, attests even more formidable difficulty when the force to be met is again varied by the added elements of speed and angle at the point of thrust. The reason seems clear why the Court of Appeals has not held that highway fences must be adequate to prevent cars from being driven off or running off that part of the road which has been prepared for general travel.

There is some evidence that the car in question backed off the road, but why it did so is a matter of theory and speculation. There is no proof of the cause. It was not due nor claimed to be due to any defect in the traveled part of the highway itself. And even if it were known that the driver guided the car off the road under misapprehension of its width, or in the exercise of imperfect judgment, that would not alter the case. The public authorities are not called upon to foresee and guard against each misapprehension, or defect in judgment, which they did not bring about. It is only against the foreseeable accident they are required to guard — not necessarily the exact one that happens, but one of that type. As I view the accident here, it would not be reasonable to hold that the highway authorities were bound to anticipate that the driver, who had traveled along the bank of the river for miles, would attempt to turn around on a twelve-foot road by driving into an ascending private driveway and backing down into a highway with which he was unfamiliar in the night time, in an automobile without brakes.

The Best and Eaton cases appear to be decisive of the one under review. Those cases are dissimilar mainly in that in each of them the cause of the accident was known; and in this case it is unknown. In the Best case a public bus was being driven on a level county highway along a steep and unguarded embankment four feet from the macadam. The shoulder was covered with four or five inches of fresh loose gravel, and was prepared for travel to the very edge of the bank. The steering gear failed, and the bus headed toward the bank. The chauffeur applied the brakes, and brought the bus to a stop at the edge of the bank, and almost parallel with it. The bank gave way under one wheel, and the bus slid and rolled down sidewise, causing the death of an infant passenger. It did not run off the bank. This was held to be an accident which the highway authorities were not required to foresee, and the claim was dismissed (Best v. State of New York, 203 App. Div. 339; affd., 236 N. Y. 662). In the Eaton case the car was being driven on a dirt road that was frozen, slippery and rutted. It ran close to a pond toward which there was a dangerous declivity. The driver attempted to force the wheels out of a rut in order to pass another vehicle, and left the prepared part of the road, went upon grass, snow and ice, and slid down the bank, causing the driver’s death. Again the car did not “ run off the bank.” It was held that the accident was one that could not be foreseen by the town authorities in the exercise of reasonable care, and the complaint was dismissed (Roberts v. Town of Eaton, 238 N. Y. 420).

I am unable to find any authority which warrants the affirmance of this judgment. It should be reversed, and the complaint dismissed.

Crapses, J., concurs.

Judgment and order affirmed, with costs.