Applebee v. State of New York

CourtNew York Court of Appeals
Citation308 N.Y. 502
Decision Date26 May 1955
PartiesOlive Applebee, as Administratrix of The Estate of Charles W. Applebee, Deceased, Respondent,<BR>v.<BR>State of New York, Appellant. (Claim No. 31652.)<BR>Ruth I. McGuire, Individually and as Administratrix of The Estate of Charles J. McGuire, Deceased, Respondent,<BR>v.<BR>State of New York, Appellant. (Claim No. 31183.)

308 N.Y. 502

Olive Applebee, as Administratrix of The Estate of Charles W. Applebee, Deceased, Respondent,
v.
State of New York, Appellant.
(Claim No. 31652.)
Ruth I. McGuire, Individually and as Administratrix of The Estate of Charles J. McGuire, Deceased, Respondent,
v.
State of New York, Appellant.
(Claim No. 31183.)

Argued March 8, 1955.Decided May 26, 1955


Jacob K. Javits, Attorney-General (John R. Davison and Henry S. Manley of counsel), for appellant.

William L. Shumate, Carl Dengel and Thomas C. Cusack for Olive Applebee, respondent.

Bradford F. Miller for Ruth I. McGuire, respondent.

DESMOND, DYE, VAN VOORHIS and BURKE, JJ., concur with FULD, J.; FROESSEL, J., dissents in an opinion in which CONWAY, Ch. J., concurs.

[308 N.Y. 504]

FULD, J.

At about 2 o'clock of a Sunday afternoon in November of 1951, there was a 3-car collision at the intersection of a county highway, known as Fisk Road, with Route 96A, a concrete state road, near the Sampson Air Force Base, not far from the City of Geneva, in Seneca County. The weather was clear, the roads dry. Marilyn Steinmiller, 18 years of age, had come from Rochester that same day to visit a friend at the Air Base and was returning home with two companions by way of 96A. Leaving the Base, she proceeded easterly along Fisk Road at about 15 miles an hour and, when she came to within 20 feet of the state highway, she started to slow down. She had been driving so slowly that it was only necessary for her to take her foot off the gas pedal to slacken her speed, though she "thought" she used the brake and, "as far as" she could "remember," she was at a "standstill" when she was hit. At any rate, after she had slowed down, she "glanced" to her left

[308 N.Y. 505]

and saw two cars parked in front of a restaurant on the northwest corner; able to see "about 200 feet" in that direction, she observed no traffic approaching. Then, glancing to the right, she saw a Greyhound bus, about 100 feet away, coming north on 96A. She thereupon stopped at the intersection, her automobile "about a foot or a foot and a half out into 96A". At that moment, a car traveling south on that road, driven by Charles McGuire, hit the left front fender of her car; she had not observed it before the impact. And then things happened fast. Her car was swung half way around so that its rear end was in the northbound lane of 96A; McGuire's auto swerved into the oncoming Greyhound bus, turned over and was pushed by the bus back against the Steinmiller car, which then hit a car parked at the gas station on the northeast corner of the intersection.

McGuire and the bus driver Applebee died of the injuries that they sustained in the crash; their wives are the claimants in these two suits, brought against the state on the theory that the latter was negligent in failing to have a stop sign on Fisk Road just before its intersection with 96A. Such a sign had been there — at a point some 36 feet west of the state highway, by order of the New York State Traffic Commission, pursuant to article 7 of the Vehicle and Traffic Law — but it had been struck by an automobile and bent over almost to the ground about seven weeks before the present accident, and had not been repaired or replaced.

Although the evidence is not explicit that Miss Steinmiller had traveled from Rochester to Sampson via Route 96A and Fisk Road, she was aware, as both the trial court and the Appellate Division found, that, to return to Rochester, she had to go by way of 96A and intended to turn at the intersection, thus indicating a familiarity with the road and the route. Moreover, when asked why she started to slow down on Fisk Road, she answered that she "saw" that she was "entering another highway." And, although she asserted that, because of the parked cars, she could see only 200 feet to the left on 96A, there was testimony that one on Fisk Road, 10 feet from the intersection, could see to the north for a distance of about 600 feet.

The Court of Claims, in dismissing both claims, made findings substantially in accord with the facts outlined above. In addition,

[308 N.Y. 506]

it expressly found that Miss Steinmiller was returning to Rochester from Sampson by the same route by which she had come and "knew that it was heavily traveled by automobiles at high speeds". The court's conclusion was that the two drivers — who had died — had been free from contributory negligence, that Miss Steinmiller was guilty of gross negligence which constituted "the sole proximate cause" of the accident and that the collision was not due to any negligence of the state. A nonunanimous Appellate Division reversed; in essence, it found that the state's failure to restore the stop sign was a proximate cause of the accident and that the young lady's negligence, "if any," was at most a contributing factor. Accordingly, awards were rendered in favor of each claimant.

Since the reversal was on the law and the facts and since new findings, at variance with those of the trial court, were made with regard to the state's negligence, we must determine where the weight of evidence lies. (See, e.g., Canepa v. State of New York, 306 N.Y. 272, 276; Eastman v. State of New York, 303 N.Y. 691, 693.) In our view, it supports the findings and decision of the Court of Claims.

We are not unmindful that in a number of cases involving automobile accidents we have upheld judgments against the state or a municipality for failing to maintain a stop sign as required by statute. (See, e.g., Murphy v. De Revere, 304 N.Y. 922; Eastman v. State of New York, supra, 303 N.Y. 691; Nuss v. State of New York, 301 N.Y. 768. See Vehicle and Traffic Law, § 95-d.) In all of them, however, not only could the state or the municipality properly be deemed...

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48 practice notes
  • Chang v. City of N.Y.
    • United States
    • New York Supreme Court Appellate Division
    • August 4, 2016
    ...sign been present in Eastman, "the driver would have obeyed it and avoided the accident" ( Applebee v. State of New York, 308 N.Y. 502, 507, 127 N.E.2d 289 [1955] ).The dissent opines that the City is not liable because plaintiff's own action eliminated any alleged negligence by t......
  • Rivera v. Town of Wappinger, 2016–02704
    • United States
    • New York Supreme Court Appellate Division
    • August 29, 2018
    ...across the intersection’ " ( Noller v. Peralta, 94 A.D.3d 830, 832, 941 N.Y.S.2d 700, quoting Applebee v. State of New York, 308 N.Y. 502, 507, 127 N.E.2d 289 ). Where the driver "had all the warning, all the notice of danger, that a stop sign would have afforded," there is n......
  • Leiching v. Consolidated Rail Corp., No. 92-CV-1170.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • October 18, 1995
    ...had been present." Vasquez v. Consolidated Rail Corp., 180 A.D.2d 247, 584 N.Y.S.2d 345, 348 (3d Dept.1992); see, Applebee v. State, 308 N.Y. 502, 127 N.E.2d 289 (1955). It is clear in this case that a sign would not have altered the plaintiff's conduct. The purpose of a sign is to war......
  • Bachman v. Mejias
    • United States
    • United States Court of Appeals (New York)
    • July 11, 1956
    ...supports the findings of the Appellate Division or that of Special Term. Civil Practice Act, § 605; Applebee v. State of New York, 308 N.Y. 502, 511, 127 N.E.2d 289, 293; Harrington v. Harrington, 290 N.Y. 126, 130, 131, 48 N.E.2d Page 908 290, 292; People ex rel. Herzog v. Morgan, 287 N.Y.......
  • Request a trial to view additional results
48 cases
  • Chang v. City of N.Y.
    • United States
    • New York Supreme Court Appellate Division
    • August 4, 2016
    ...sign been present in Eastman, "the driver would have obeyed it and avoided the accident" ( Applebee v. State of New York, 308 N.Y. 502, 507, 127 N.E.2d 289 [1955] ).The dissent opines that the City is not liable because plaintiff's own action eliminated any alleged negligence by t......
  • Rivera v. Town of Wappinger, 2016–02704
    • United States
    • New York Supreme Court Appellate Division
    • August 29, 2018
    ...across the intersection’ " ( Noller v. Peralta, 94 A.D.3d 830, 832, 941 N.Y.S.2d 700, quoting Applebee v. State of New York, 308 N.Y. 502, 507, 127 N.E.2d 289 ). Where the driver "had all the warning, all the notice of danger, that a stop sign would have afforded," there is n......
  • Leiching v. Consolidated Rail Corp., No. 92-CV-1170.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • October 18, 1995
    ...had been present." Vasquez v. Consolidated Rail Corp., 180 A.D.2d 247, 584 N.Y.S.2d 345, 348 (3d Dept.1992); see, Applebee v. State, 308 N.Y. 502, 127 N.E.2d 289 (1955). It is clear in this case that a sign would not have altered the plaintiff's conduct. The purpose of a sign is to war......
  • Bachman v. Mejias
    • United States
    • United States Court of Appeals (New York)
    • July 11, 1956
    ...supports the findings of the Appellate Division or that of Special Term. Civil Practice Act, § 605; Applebee v. State of New York, 308 N.Y. 502, 511, 127 N.E.2d 289, 293; Harrington v. Harrington, 290 N.Y. 126, 130, 131, 48 N.E.2d Page 908 290, 292; People ex rel. Herzog v. Morgan, 287 N.Y.......
  • Request a trial to view additional results

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