Best v. State

Van Kirk, J.:

The claim is prosecuted by Frank Best, as administrator of William Best. On the 14th day of June, 1919, in the middle afternoon, William Best was riding in an automobile bus, passing upon the highway from Hudson to Philmont in Columbia county. The bus swerved to the right and went down an embankment. William Best was injured and died on the next day. At the place of the accident and for some distance on either side the road is straight and level. It has a macadam surface fourteen feet in width, on either side of which is a dirt shoulder four feet wide, making the width twenty-two feet. On one side of the road the adjoining land is slightly rising. On the other side there is a steep decline of about eight feet, the upper half of which is a dirt surface and the lower half a retaining wall. A short time before the accident, the shoulder having become worn, the State had filled in this shoulder with loose gravel to keep the surface smooth and level with the macadam. The court makes a finding as follows: “ When the steering gear of the bus broke the driver of the bus lost control of it so that it could not be guided. He applied both his foot and emergency brakes, but the momentum carried the bus along for some distance and while so moving his left front wheel ran on the hard surface of the macadam road and the right wheel ran on the loose gravel part of the road and this deflected the course of the bus toward the north edge of the road. It continued its course very slowly and when it got to the edge of the road had almost stopped but still had momentum sufficient to bring the right front wheel over the edge of the road and at that moment the bus overturned and dropped to the bottom of the embankment in the field adjoining.” This finding is justified by the evidence. There was no barrier erected along the side of the road at the place of the accident. The edge of the road and the embankment were plainly discernible.

Section 176 of the Highway Law (as amd. by Laws of 1916, chap. 578) ^* provides: “ The State shall not be liable for damages suffered by any person from defects in State and county highways, except such highways as are maintained by the State by the patrol system.” The highway in question was so maintained. When the State assumed liability for injuries suffered on account of defects in a highway so maintained, it put itself under a like liability with towns for injuries due to defects in the highways. (Highway Law, § 74, as amd. by Laws of 1918, chap. 161; Code Civ. Proc. § 264; Court of Claims Act, § 26.)

It was not negligence upon the part of the State or its representatives to put loose gravel upon the shoulder of the road. It was but performing its duty when it filled in the worn places along the side of the road to protect the traveling public from dangers due to the dirt surface being below the macadam surface, or to an uneven surface, and the omission to roll down the gravel sufficiently hard to sustain the bus was not negligence.

The chief question arises as to whether or not the State should have erected barriers. In this case the circumstances are very similar to those in Dorrer v. Town of Callicoon (183 App. Div. 186), where the court cites controlling authorities and concludes that there was no duty to guard the highway with a barrier', where the road was substantially straight, the width of the entire surface about the same as in this case at bar, the margin plainly discernible, but there was a perpendicular drop of three and one-half feet and a further drop of eight feet at an angle of forty-five degrees; the automobile collided with a light wagon, was diverted from its course and ran off the embankment. Here the steering gear broke and in consequence the driver could not guide or control the course of the bus. It gradually swerved to the right from the hard macadam to the dirt surface. When, the right front wheel struck the rougher and softer dirt surface, the front wheels, without steering gear control, naturally turned further towards the edge of the road. The brakes were insufficient to stop the heavy bus. We do not think that the guardians of the highway would reasonably anticipate the occurrence of such an accident as this. The edge of the macadam was as plainly discernible as if a barrier had marked it and there is no claim that the accident happened because the driver did not realize where the edge of the road was. Unless a barrier had been constructed sufficiently strong to hold the weight of this bus, even though it had almost stopped, it could not have prevented this accident; and it is not the duty of the State or of a highway officer to construct a barrier sufficiently strong to hold a heavy car or truck from going over an embankment. The existence of a guard rail, such as the State might be called upon to erect, would not have prevented this accident. Had the steering gear not broken the accident would not have occurred. We think the breaking of the steering gear was the proximate cause of the accident. In Laidlaw v. Sage (158 N. Y. 73, 99) the court defined proximate cause as follows: “ ‘The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred.’ ”

The court was justified in finding that negligence on the part of the State or its agents was not the cause of the death of William Best. The judgment should be affirmed, with costs.

H. T. Kellogg, Acting P. J., Kiley and Hinman, JJ., concur; Hasbrouck, J., dissents.

* Since amd, by Laws of 1922, chap. 371.— [Rep.