DocketNumber: Claim No. 42170
Citation Numbers: 32 A.D.2d 1005
Judges: Staley
Filed Date: 7/3/1969
Status: Precedential
Modified Date: 1/12/2022
Appeal from a judgment in favor of defendant, entered March 1, 1967, upon a decision of the Court of Claims. About 12:05 a.m. on January 1, 1962 claimant was struck by an automobile driven by Charles Cornick, and, as a result of the accident, she sustained severe permanent injuries. The accident occurred on the southerly side of Route 86 in the Town of Wilmington about 150 to 200 yards west of the Sportsman’s Inn. Claimant testified that a few minutes before the accident, she and her companion Erl Koenig left the Inn to persuade George Bovee to return to the Inn. Bovee’ car was parked on a lawn used as a temporary parking area about 150 to 200 yards west of the Inn. As they approached the parking area Bovee was moving his car toward the road and Koenig called him, whereupon Bovee stopped his car with the front wheels on the pavement of the road. Claimant- and Koenig then proceeded to the driver’s side of Bovee’s car, and Koenig began talking to him. Koenig was standing on the shoulder of the road next to the driver’s door, and claimant was behind him towards the rear fender of the Bovee car. Neither claimant nor Koenig had any recollection of hearing or seeing the Cornick car or its lights prior to being struck by the Cornick ear. Cornick testified that, as he approached the Sportsman’s Inn, he came over a hill and observed a car 400 to 500 feet away with its high beam lights on. He did not realize that Bovee’s car was in the eastbound lane standing still. The lights were angled across the road and -had a tendency to blind him. He flicked his lights up and down because the lights of the other car blinded him. He could not see well enough and, as he approached the ear, its lights blinded him more. He pulled to the left and, as the cars on the left were blocking the road, he pulled back to the right, As he passed the lights of the Bovee ear he saw claimant and Koenig for the first time, and could not -avoid hitting them. He then continued on and struck the left rear fender of the Bovee car, and then struck a car parked on the southerly shoulder of the road. Mrs. Cornick testified that the lights attracted her; that they were not in the middle of the road but “ at an angle where you couldn’t see nothing ”, and that the lights blinded us. In Corniek’s statement to the police, he made no mention of his turn to the left, or of ears blocking the road on the left, and one eyewitness testified that the Cornick car did not turn to the left. This claim is based upon claimant’s contention that the State, after knowledge of a dangerous condition caused by the parking of automobiles on both sides of the road in the area of the accident, failed to erect “No Parking” signs, and that the State was further negligent in that it permitted automobiles to be parked partially on the shoulders -and partially on the pavement of Route 86 and, that on the night of the accident, the roadway was so narrowed by parked vehicles there was no room for Cornick to pass the Bovee car. Considerable evidence was introduced with regard to the parking problem in the area of the Sportsman’s Inn including evidence of an investigation by the agencies responsible, and the determination by the State Traffic Commission not to authorize the erection of “No Parking” signs based upon the absence of any history of accidents in the area and the agreement of the owner of the -Sportsman’s Inn to increase the size of the parking facilities for the Inn and the further fact that the problem occurred only on some weekends during the skiing season. The evidence is conflicting as to whether cars were parked on both shoulders of the road in the area of the accident, and also as to whether Cornick was traveling in the middle of the road as he testified or had driven about 200 feet on the south shoulder to avoid á head-on collision with Bovee as stated in the police accident report