Harrison v. State

• Decision Date: 21 September 1959
• Docket Number: No. 32511,No. 32506,32506,32511
• Citation: 19 Misc.2d 578,197 N.Y.S.2d 662
• Parties: William HARRISON, Claimant, v. STATE of New York. Claim William HARRISON, as Administrator of Estate of Pearl B. Harrison, Claimant, v. STATE of New York. Claim
• Court: New York Court of Claims

Page 662

197 N.Y.S.2d 662

19 Misc.2d 578

William HARRISON, Claimant, v. STATE of New York.

Claim No. 32506.

William HARRISON, as Administrator of Estate of Pearl B Harrison, Claimant, v. STATE of New York.

Claim No. 32511.

Court of Claims of New York.

Sept. 21, 1959.

Partyka & Dziduch, Amsterdam, by Frederick A. Partyka, Amsterdam, of counsel, for claimant.

Louis J. Lefkowitz, Atty. Gen., of State of New York, by Edward R. Murphy, Asst. Atty. Gen., of counsel, for state.

RUSSELL G. HUNT, Judge.

These two claims seek to recover damages arising out of an automobile accident allegedly resulting from the negligence of the State in the maintenance and repair of that part of State highway, route No. 30, between Perth Center, Fulton County, on the south, and Vail Mills on the north. They were consolidated for the purposes of trial.

The driver of the car, William Harrison, 26 years of age, one of the claimants, seeks to recover for personal injuries to himself and damage to his automobile, and, as administrator of the estate of his wife, Pearl B. Harrison, 42 years of age, who died as a result of the accident, he seeks to recover damages for her conscious pain and suffering and wrongful death.

The accident occurred at about 10:00 o'clock on the evening of December 24, 1953, as the car was being driven northerly on route No. 30, a concrete highway, twenty feet in width, at a point where it curved to the left and about two miles north of Perth. The night was clear, dry and cold; the automobile's head lights were on highest brightness, the moon shone brightly and the claimant testified he could see the road ahead; nevertheless, the car went off the pavement. The highway had been under reconstruction from September 1, to December 23, when the work was suspended for the winter. The prior protective covering over the concrete consisted of a combination of asphalt and fine stone. This had become worn and the concrete pavement was to be again covered with an asphaltic concrete material, and, with the shoulders, was to be widened. The work under way, until the suspension for the winter, consisted of clearing and grubbing the shoulders, the removal of guide posts and other work off the pavement of the highway. In this work, the contractor used heavy machinery on the shoulders, and, at the time of the accident, the tracks left by the machines were frozen and a few of these were several inches in depth and width, but, they did not prevent automobiles from passing from the highway on to the shoulders and parking there. 'The shoulder of a highway is not constructed to travel on and irregularities in the shoulder are not defects in the highway or a menace to the travelling public' (Rafferty v. State, 172 Misc. 870, 872, 16 N.Y.S.2d 685, 687, affirmed 261 App.Div. 80, 24 N.Y.S.2d 689; see, too, Kinne v. State, 8 A.D.2d 903, 186 N.Y.S.2d 895); a shoulder is for use in an emergency (Farnham v. State, 277 App.Div. 1015, 99 N.Y.S.2d 1018, leave to appeal denied 302 N.Y. 948, 98 N.E.2d 116); however, there was no evidence herein of an emergency.

The driver testified that on the afternoon of December 24th he had attended an office party and there consumed alcoholic beverages; thereafter, he had gone to his home in Amsterdam. Between eight and eight-thirty o'clock that evening he and his wife started on the ride northerly on route No. 30. The accident occurred, the driver testified, at about 9:30 o'clock, but, later, upon cross-examination, he changed this to ten o'clock, which was the time given by disinterested witnesses, although, there was some testimony that the time was later. The driver was familiar with the highway because of frequent trips over it and he knew that its reconstruction had been under way for several months. He drove at a rate of speed of 40 miles per hour for about 8 miles and reduced the speed to about 35 miles per hour upon approaching the curve which he could see clearly. The automobile left the pavement at a place where the curve 'started to straighten', that is, at the end of the curve. On the day following the accident, at a hospital, the driver was questioned by a State trooper and he then stated that the couple had left a party just before the accident and he did not know how the accident happened; he was lucid and clear at the time of these admissions. 'Admissions * * * are the most persuasive form of proof that exists' (B. Altman & Co. v. Lewis, 8 Misc.2d 802, 804, 160 N.Y.S.2d 897, 899). They were not rebutted and stand unexplained, although it would have been competent for the driver to have offered an explanation (Chamberlain v. Iba, 181 N.Y. 486, 492, 74 N.E. 481, 482). The driver attempted, upon the trial, to place the blame for the accident upon an unidentified obstruction in the highway which, he said, was hit by the front wheels of the automobile and the car was deflected to the easterly side of the roadway and a series of ridges in the pavement which were horizontal to the direction of travel caused the wheels to skid so that the car could not be controlled, and, it went off the pavement. The mere fact the car skidded, or, that an accident happened, however, is not sufficient to infer negligence (Coffey v. State, 193 Misc. 1060, 86 N.Y.S.2d 172, affirmed 276 App.Div. 1049, 96 N.Y.S.2d 303, 304, leave to appeal denied, 301 N.Y. 813, 95 N.E.2d 57). Furthermore, it was contended, there were no adequate signs or markings along and on the highway so as to warn and inform travelers of dangers and hazards.

The evidence failed to show actual or constructive notice to the State of any obstruction in the highway, and, in fact, the driver did not meet with an obstruction thereon. The evidence established, too, that he encountered no emergency and was not forced off the highway by reason thereof. The record does show that the automobile strayed off the roadway and struck a small mound of dirt at a mail box which was five or six feet from the edge of the pavement and it then collided with additional boxes, and, thereupon the driver and the intestate were thrown out and the car continued on, crossed the highway, and went into a ditch on its west side. Undoubtedly, the condition of the shoulder contributed to the irregular course of the...