Lindner v. State

• Decision Date: 22 March 1966
• Docket Number: Nos. 41988,41990,41989,s. 41988
• Citation: 49 Misc.2d 908,268 N.Y.S.2d 760
• Parties: Karl LINDNER, Claimant, v. The STATE of New York, Defendant (two cases). Elizabeth LINDNER, Claimant, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 760

268 N.Y.S.2d 760

49 Misc.2d 908

Karl LINDNER, Claimant, v. The STATE of New York, Defendant (two cases).

Elizabeth LINDNER, Claimant, v. The STATE of New York, Defendant.

Claim Nos. 41988, 41990, 41989.

Court of Claims of New York.

March 22, 1966.

Schick & Klein, Kingston, John R. Davison, Albany, of counsel, for claimants.

Louis J. Lefkowitz, Atty. Gen., Jacob M. Olshansky, Asst. Atty. Gen., of counsel, for the State.

RONALD E. COLEMAN, Judge.

The claims were timely filed and have not been submitted to any other Court or tribunal for audit or determination. It was stipulated on the trial that the three claims were to be tried together. On December 2, 1962 at about 9:30 A.M., the claimant Elizabeth Lindner was operating an automobile owned by her husband Karl Lindner, with him as a passenger, in a northerly direction on State Highway Route 42 in the Town of Lexington, Greene County. On Route 42 there is an area known locally as West Kill Notch. As the claimants approached this area they were proceeding downgrade and drove around a curve to the left and then one to the right. While coming out of the curve to the right, the automobile skidded on ice which covered the pavement, went across the road and off the westerly side coming to rest against some guardrails and the automobile was partially in the southbound lane and on the shoulder throwing the claimants out onto the pavement. Both were seriously injured and required extensive hospital and medical care. The claim made was for the alleged negligence of the State for allowing the icy condition to exist as well as negligence in constructing the highway and not properly signing the curves.

In the area of the accident Route 42 had been resurfaced in 1962 with asphalt, the drainage facilities recut and the shoulders of the highway brought to the level of the pavement. At the place where the accident happened there was a steep hill adjacent to the highway on one side and a slope on the other with woods all of which shaded the highway. As a result, the sun did not reach this area of the road until some time after two o'clock in the afternoon. When there were periods of moderate weather during the winter months, water would accumulate on the highway and freeze during the night. Greene County did the snowplowing but employees of the State of New York sanded the road. The accident happened on a Sunday morning and the State's light maintenance foreman testified that while the roads were inspected on every workday during the winter months, no inspection was made of the roads on Saturday or Sunday. According to him the rules of the Department of Public Works did not require that any inspection be made on Saturdays and Sundays and they only sanded roads on these days when they were called to do so. Why this should be so during winter months was not explained. On the day of the accident all the highways were dry and clear except at the place where the accident happened.

There was a patch of ice on the highway at the point where the accident happened which extended for 150 yards each side of where the claimants' automobile came to rest. This condition covered both lanes of the highway and was described both as an icy condition and a frosty condition but there was no question but what it was slippery on the day of the accident. On this record we find that the State knew or should have known of this dangerous condition when there were periods of moderate weather and thawing such as had taken place on the days prior to the accident. A proximate contributing cause of the accident was the State's negligence in failing to erect signs to warn of a dangerous condition and in failing to sand the icy surface on the day of the accident prior to its occurrence. (Fincher v. State of New York, 19 A.D.2d 762, 241 N.Y.S.2d 504).

There was opposing proof made by the claimants and the State in respect to the proper construction of the highway and whether the curve and speed signs in place ahead of the left hand curve gave adequate warning of the double curve. In view of our determination, we do not find it necessary to pass upon these claimed acts of negligence.

The question of whether Mrs. Lindner has proved by a fair preponderance of the credible evidence her freedom from contributory negligence presents a more difficult problem. Mrs. Lindner was asked and testified as follows:

'Q. Now when you rounded the curve, you came upon the ice in the highway; what did you do?

A. I braked down and when the car went over on the guardrail I was thrown out. I didn't know nothing any more.' (S.M. 21--22).

No further explanation was given as to when and where Mrs. Lindner applied the brakes except that after the car started to skid she did not apply the brakes. The State Trooper who made an investigation of the accident testified that the ice covered the entire road for a distance of approximately 300 yards. When he arrived at the scene of the accident he found the car against the guardrail at a point which was midway between the beginning and the ending of the ice patch. He observed skid marks leading back from the automobile a distance of approximately 100 feet. Taking her testimony together with the physical facts, Mrs. Lindner must have traveled approximately 300 feet on the ice before she applied her brakes. Why she applied the brakes when she did was not explained. It was her burden to prove her freedom from contributory negligence and upon her testimony and the physical circumstances surrounding the accident we find that she has failed to prove by a fair preponderance of the credible...