Applebee v. State of New York

• Citation: 308 N.Y. 502
• Parties: Olive 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.)
• Decision Date: 26 May 1955
• Court: New York Court of Appeals Court of Appeals

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.

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 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, 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 negligent in failing to maintain a sign, but the proof established that the drivers had proceeded into the intersection without stopping, in such a manner that it was reasonable to infer that such negligence was the proximate cause of the accident.

In the Eastman case (supra, 303 N.Y. 691), a truck, approaching a T intersection from the west and attempting to make a left-hand turn into the highway running approximately north and south, collided with a car driving south on that road. The east-west highway made a long curve into the north-south one in such a way that, without a stop sign, it was difficult to tell which driver should, or would, stop. The state traffic commission, however, had previously ordered a stop sign, on the southwest corner of the intersection, removed as unnecessary. The Court of Claims decided in favor of the claimants and against the state, the Appellate Division reversed and dismissed the claims, and this court, in turn, reversed the Appellate Division's determination. Underlying that decision is the thesis that, while the acts of the drivers might have been concurring causes of the accident, the negligence of the state in removing the sign was the proximate cause and that, had the sign been there, the driver would have obeyed it and avoided the accident. In Eastman, and in Murphy and Nuss as well — the latter two cases involving night collisions at unfamiliar crossings — it was the very absence of the stop sign which rendered the drivers unaware of the need to stop before proceeding across the intersection. The failure to maintain a stop sign, therefore, was found in each instance to be the very direct and proximate cause of the accident.

In the present case, on the other hand, the circumstances were such that the absence of a stop sign had no bearing on the happening of the accident. Unlike the drivers in the other cases, Miss Steinmiller was fully aware of the dangerous intersection and of the need to stop.

It was a clear day, with good visibility, and she knew about the intersection. Aware that she was approaching 96A, she began to slow up some 20 feet from the corner; she glanced to her left and, her view partially obstructed, saw no car coming from that direction. She then looked to her right; she saw the Greyhound bus coming from the south and braked her car to a stop about a foot and a half on the pavement of 96A. She was undoubtedly waiting for the bus to go by in the furthermost lane, under the impression that there was no traffic in the lane where she had brought her car to a halt. She was, of course, in error, and, since — when she was on Fisk Road about 10 feet west of 96A — she had a sight distance of nearly 600 feet to the north, she would have seen the McGuire car had she looked again in that direction. Consequently, it becomes obvious, the accident occurred only because she neglected to look to the north at a point where the parked cars did not interfere with her view.

A moment's analysis serves to confirm this. Had the stop sign been in place, we presume that Miss Steinmiller would have observed its injunction. But that is precisely what she did do. She knew that the intersection with the state road was just ahead; she knew...