Wilkinson v. State

• Decision Date: 23 September 1958
• Citation: 178 N.Y.S.2d 55,4 N.Y.2d 369,14 Misc.2d 616
• Parties: Charles N. WILKINSON, Claimant, v. The STATE of New York. Iva A. WILKINSON, Claimant, v. The STATE of New York.
• Court: New York Court of Claims

Page 55

178 N.Y.S.2d 55

14 Misc.2d 616

Charles N. WILKINSON, Claimant, v. The STATE of New York.

Iva A. WILKINSON, Claimant, v. The STATE of New York.

Court of Claims of New York.

Sept. 23, 1958.

Ferdinand D. Tomaino, Utica, for claimants.

Louis J. Lefkowitz, Atty. Gen., Edward R. Murphy, Asst. Atty. Gen., of counsel, for the State.

RICHARD S. HELLER, Judge.

These two claims are the result of an automobile accident which occurred at about 5:15 P.M. on Sunday, November 26, 1950 on a State Highway known as Route 5 at Lairdsville in Oneida County, New York, when an automobile driven by Charles N. Wilkinson, with Iva A. Wilkinson as a passenger, collided with a fallen tree. In this area Route 5 consisted of two lanes 22 feet in width for west bound traffic and two lanes 22 feet in width for east bound traffic divided by a slightly raised two foot concrete mall.

On November 25, 1950, there was a wind and rain storm of such violence that 325 trees were blown down in Oneida County on that day. Late on that day, a very large box elder located on property owned by Albert J. Jennings on the south side of Route 5 in Lairdsville, was blown down. Prior to that time, the tree was apparently healthy and there was no indication that its falling was caused by anything other than the storm. After the tree fell, it lay across the road so that it blocked both the east and west bound lanes.

The State Police were notified of this particular fallen tree on November 25, 1950. No action was taken by the State with regard to this fallen tree from that time until the accident on November 26, 1950, a period of almost 24 hours.

Members of the Lairdsville Volunteer Fire Department and other volunteers obtained all available flares of type known as 30-minute flares from the State Police Barracks at New Hartford and used them on the night of November 25th. These volunteers also directed traffic and cut away a sufficient part of the tree so that all of the west bound lanes of traffic were unobstructed.

On November 26th, up to the time of the accident, the east bound traffic lanes remained almost completely obstructed by a large section of the fallen tree including a substantial part of the main trunk which was approximately three feet in diameter. As Charles N. Wilkinson drove easterly on Route 5, there were no signs, flares or barricades of any kind to warn him or any east bound traffic of this obstruction.

At the time of the accident the weather was clear and the pavement dry. There is a sharp conflict in the evidence as to the light conditions with the claimant and his wife testifying that their car as well as other cars proceeding easterly behind them and coming toward them in a westerly direction had lights on and that it was dark. Other witnesses all testified that at the time of the accident it was not sufficiently dark to require headlights on automobiles and that the tree was clearly visible at a distance of 400 feet to the west thereof immediately after the accident occurred without the assistance of artificial light.

For a distance of more than 1,000 feet to the west of the fallen tree, the highway was straight with only minor changes in elevation which had no material effect upon sight distances.

The State has an obligation to maintain its highways in reasonably safe condition and to give adequate and proper...