Lindner v. State

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: HERLIHY
• Citation: Lindner v. State, 290 N.Y.S.2d 698, 30 A.D.2d 615 (N.Y. App. Div. 1968)
• Decision Date: 27 May 1968
• Docket Number: 41989 and 41990,Nos. 41988,s. 41988
• Parties: Karl LINDNER, Respondent-Appellant, v. STATE of New York, Appellant-Respondent. Elizabeth LINDNER, Appellant, v. STATE of New York, Respondent. Karl LINDNER, Appellant, v. STATE of New York, Respondent. Claim

Page 698

290 N.Y.S.2d 698

30 A.D.2d 615

Karl LINDNER, Respondent-Appellant, v. STATE of New York, Appellant-Respondent.

Elizabeth LINDNER, Appellant, v. STATE of New York, Respondent.

Karl LINDNER, Appellant, v. STATE of New York, Respondent.

Claim Nos. 41988, 41989 and 41990.

Supreme Court, Appellate Division, Third Department.

May 27, 1968.

Schick & Klein, Kingston (John R. Davison, Albany, of counsel), for lindner.

Atty. Gen. Louis J. Lefkowitz, Douglas L. Manley, Albany, for the State.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and STALEY, JJ.

HERLIHY, Justice.

Appeal by the State and cross appeal by the claimant Karl Lindner from a judgment of the Court of Claims awarding the claimant the sum of $7,596.50 and appeal by the claimants from judgments which (1) dismissed the derivative claim of Karl Lindner for medical expenses and loss of services as to his wife Elizabeth Lindner; (2) dismissed the claim of Elizabeth Lindner.

The causes of action against the State arose out of an automobile accident which occurred on Route 42 in the Catskill Mountains. Elizabeth Lindner was driving the car which was owned by her husband Karl Lindner and he was a passenger in the car. The car proceeded onto an icy stretch of pavement and skidded into a guardrail on the opposite side of the highway causing injuries to the claimants. The trial court found that the State was negligent in its failure to sand the icy surface at this point and also in failing to erect appropriate signs warning of such danger. The court also found that Elizabeth Lindner had failed to prove her freedom from contributory negligence.

As to contributory negligence, the court found that the ice patch could be seen from a distance of 380 feet and that after reaching the patch Mrs. Lindner travelled about 300 feet on the ice when she applied her brakes. 'Why she applied the brakes when she did was not explained.' Upon the present record we cannot say that as a matter of law the court could not find a failure to prove freedom from contributory negligence and accordingly the dismissal of the claims should be affirmed.

The State contends that the claim of Karl Lindner must also be dismissed upon the authority of Gochee v. Wagner, 257 N.Y. 344, 346, 348, 178 N.E. 553, 554. In that case the court held that as a matter of law the negligence of the driver is imputable to the owner of the automobile when said owner is present in the car at the time of the accident. In both that case and the present case the owner was so present and failed to exercise any...