Brown v. State , 103 N.Y.S.2d 874 ( 1951 )

Ryan, J.

On August 18, 1949, there was a heavy rain in the vicinity of Rochester, N. Y. On State Highway Route 383, known as the Scottsville-Mumford Road, near the residence of Paul Skivington, a storm sewer, which was part of the highway, was inadequate to take the quick runoff which flowed from the high land nearby. The water pooled and a stretch of the road was covered with debris and mud. After the rain had stopped, the claimant was driving his automobile from east to west on the highway. It was daylight. The road was a straightaway for at least 1,200 or 1,300 feet and practically level. There was nothing to prevent claimant from observing the pool of water for a distance of 600 to 900 feet as he approached it yet he testified that he did not see it until he.hit it. The claimant did not slacken the speed of his vehicle sufficiently, if at all, to control it and when he entered the pool of water his car left its course and crashed against an automobile .which was being operated by one McCormick in the opposite direction and on the southerly side of the highway.

After due deliberation, we are convinced that the proximate cause of the accident was the claimant’s negligence. (Canfield v. State of New York, Claim Nos. 23587-23588 [1934], affd. 244 App. Div. 888; Paulsen and Silleman v. State of New York, Claim Nos. 25545-25546-25547 [1940]; Miller v. State of New York, 198 Misc. 791.)

The motion made by the Attorney-General to dismiss the claim on the ground of claimant’s contributory negligence is granted.

Enter order accordingly.