193 Misc. 507, 28406, Mitchell v. State

Docket NºClaim 28406.
Citation193 Misc. 507, 85 N.Y.S.2d 80
Party NameWILLIAM D. MITCHELL, Claimant, v. STATE OF NEW YORK, Defendant.
Case DateAugust 24, 1948

Page 507

193 Misc. 507

85 N.Y.S.2d 80

WILLIAM D. MITCHELL, Claimant,

v.

STATE OF NEW YORK, Defendant.

Claim No. 28406.

Court of Claims.

August 24, 1948

Page 508

COUNSEL

Julian R. Hanley for claimant.

Nathaniel L. Goldstein, Attorney-General (James G. Austin of counsel), for defendant.

LAMBIASE, J.

On the 3d day of May, 1946, at or about 1:30 A. M. claimant was driving his automobile in a general southeasterly direction on Schenck Road in Letchworth State Park at or near the Livingston-Wyoming County boundary line. As he was thus driving, he arrived at a point in said park where said Schenck Road forms a dead-end 'T' intersection with another road known as Park Road, at which point, in attempting to make a left-hand turn to the northeast, he drove off the said intersection and into and against a tree some 150 feet northeasterly from the center of said intersection, damaging his automobile beyond repair and causing him to suffer permanent injuries.

It is the claim of the claimant that the State was negligent 'in failing to erect proper signs on the Schenck Road, Wyoming County, at the boundary of Letchworth Park to warn traffic that it is entering the park; and further in failing to erect

Page 509

any warning signs on said Schenck road inside Letchworth Park, in or near the southeast end of Schenck road to warn east-bound traffic on said road that said Schenck road is a dead end highway which terminates at an approximate T intersection with another highway.'(Claimant's Claim, par. 2.) The State, on the other hand, maintains that the accident was due solely to the negligence of the claimant.

Schenck Road is situate in the town of Perry, Wyoming County, New York. It is about 1.6 miles in length, and its eastern terminus is at its juncture with said Park Road. It is paved with macadam to a width of 20 feet and is a county road for its entire width to a point thereon which is about 1,050 feet northwesterly from its intersection with said Park Road. Proceeding in a southeasterly direction from said last-mentioned point toward said intersection and for a distance of 550 feet measured along the center of said Schenck Road, only the south half of said road is located in and is a part of Letchworth Park. Continuing southeasterly along the remaining 500 feet of said road down to said intersection the entire width of Schenck Road is located in said park. It appears from the record that the north half of Schenck Road for the aforementioned distance of 550 feet, at all times in the claim mentioned, was a county road or highway.

Claimant's Exhibit 6, being also State's Exhibit I in evidence shows among other things a profile of said 1,050 feet of said Schenck Road and has indicated thereon, among other things, the elevations thereof at regular stations. Between station 9 and the intersection aforesaid there is a general downward or descending grade. More specifically: At a point 900 feet west of said intersection, the grade or slope is minus 6.6%; at a point between 600 and 700 feet west of said intersection the grade is minus 5.6%; at a point 500 feet west of said intersection it is minus 5.8%; at a point 300 feet west of said intersection it is minus 7.6%; and at a point 100 feet west of said intersection it is minus 5.2%. There are shrubs and trees on both sides of Schenck Road for a distance of 500 feet to the northwest from said intersection and on the day of the accident there was a great deal of foliage by reason thereof.

Park Road is shown on claimant's Exhibit 6 also being State's Exhibit I. Said Exhibit shows said Park Road running in a northeasterly and southwesterly direction. As it proceeds northeasterly from its juncture with the Schenck Road it has a loose gravel surface about fourteen feet in width, and as it

Page 510

proceeds southwesterly therefrom, it is paved with macadam. Also leading off from said intersection and running in a general easterly and westerly direction, is a gravel road approximately 10 to 12 feet in width and known as the Kisil Point Road, its eastern terminus being on the top of the bluff overlooking the Genesee River. Between said Park Road as it proceeds northeasterly and said Kisil Point Road, there is a parcel of land upon which there is located the tree with which claimant came in contact. There is also a road to the east of said parcel making an island of it. Located at the intersection on the north side thereof just beyond the north edge of the pavement of Schenck Road, and about opposite to the point where the macadam pavement of said Schenck Road ends in the intersection, there is a tree. Approximately opposite said Schenck Road as it makes its juncture with said Park Road and located a short distance east of the east side of said Park Road as shown on claimant's Exhibit 6, on the day of the accident there was a pile of stones about 5.4 feet high, to the north of which pile of stones there was a tree and brush, and to the south of which there was a four-foot ditch bordered on its southerly side by trees and shrubs.

The record shows that at said point 1,050 feet northwest of the scene of the accident there was on the day of said accident a sign 12 x 14 inches in size, the bottom of which was 5 feet 8 inches from the ground, said sign being tacked on to a tree on the south side of said Schenck Road. Said sign had a green background and had inscribed thereon in white letters the legend 'No Trespassing'. Some 550 feet to the southeast therefrom which point is some 500 feet northwest of the intersection there was nailed to a tree on both sides of said Schenck Road a sign of the same size and with the same color background as the first herein-mentioned sign, bearing the legend 'No Trespassing for Any Purpose. Property of the State of New York.' The words 'No Trespassing' were in letters 2 inches high and the rest in letters 1 inch high. These two signs were about 5 feet above the ground and about 10 to 12 feet from the edge of the macadam. There were no other signs between this point about 500 feet northwest of said intersection and the point of the accident located in the intersection.

At the intersection there were two signs, one bearing the legend 'Road Closed Ahead Stop' and the other bearing the legend 'Road Closed.' These signs were on the said Park Road and were there for the purpose of controlling traffic on

Page 511

it and were not visible to travelers proceeding southeasterly on the Schenck Road as was the claimant herein. There were no signs on the Schenck Road either within or without the Park area for said distance of 1,050 feet warning southeast bound traffic on said Schenck Road of said dead-end 'T' intersection; and there were no signs thereon of any nature other than those mentioned hereinbefore.

Letchworth Park is a State Park comprising some 6,700 acres of land under the immediate jurisdiction and control of the Genesee State Park Commission (Conservation Law, § 700), which commission has power among other things to: 'Make rules for the regulation of traffic, fix the price to be charged by and regulate the conduct of drivers of public conveyances for carrying persons for hire within the limits of parks and reservations, fix the charges for automobile parking privileges in specified areas in the reservation, and the charges to be made by guides for their services, and have full control over all concessions and concessionaires.' (Conservation Law, § 702, subd. 1.)

And to: 'Make and enforce suitable rules and regulations for the proper exercise of the powers and duties hereby conferred and imposed upon such commission...

To continue reading

Request your trial
1 practice notes
  • 202 Misc. 84, 29984, Piche v. State
    • United States
    • August 2, 1951
    ...is a pleasure ground set apart for the recreation of the public to promote its health and enjoyment.' (Mitchell v. State of New York, 193 Misc. 507, 515, citing cases.) This land, purchased through an appropriation for a public park, and being used for its obvious purpose, Without prohibiti......
1 cases
  • 202 Misc. 84, 29984, Piche v. State
    • United States
    • August 2, 1951
    ...is a pleasure ground set apart for the recreation of the public to promote its health and enjoyment.' (Mitchell v. State of New York, 193 Misc. 507, 515, citing cases.) This land, purchased through an appropriation for a public park, and being used for its obvious purpose, Without prohibiti......