Sylor v. Irwin
| Decision Date | 26 March 1970 |
| Citation | 308 N.Y.S.2d 937,62 Misc.2d 469 |
| Parties | Audry K. SYLOR, an infant, by Norbert F. Sylor, her father and natural guardian, Plaintiffs, v. Robert B. IRWIN, S. Kenneth Wilmot, Edward Wilmot, Town of Hume and Ivan P. Vedder, Superintendent of Highways of the Town of Hume, Defendants. |
| Court | New York Supreme Court |
Defendants, Town of Hume ('Hume') and Ivan P. Vedder ('Vedder') seek a summary judgment against plaintiff.
The Court finds these facts.
June 19, 1968, while infant plaintiff, Audry K. Sylor ('Audry'), was riding as a passenger on a Honda motorcycle operated by defendant, Robert B. Irwin ('Irwin'), it was struck by an automobile owned by defendant, Edward Wilmot ('Edward'), and operated by defendant, S. Kenneth Wilmot ('Kenneth') on Dugway Road, Town of Hume, County of Allegany, New York. The Motorcycle was being driven westerly out of a private driveway across Dugway Road which runs north and south, and on which the Wilmot car was being driven northerly at the time of the accident.
The claimed negligence of Hume and Vedder was that they '* * * were negligent in failing to properly maintain Dugway Road, in the vicinity of the accident; in failing to cut and remove brush, trees and other growth growing within the bounds of Dugway Road; in failing to install and maintain traffic signs to warn users of the highway of the intersection of the highway with a driveway and that visibility was impaired by reason of brush, trees and other growth growing within the bounds of the highway; and in failing to appropriate adequate funds to properly maintain Dugway Road.'
Brush and trees were growing on June 19, 1968 from the ditch on the easterly side of Dugway Road for 200 to 400 feet southerly from the said private driveway. In the 200 feet south of the driveway, no brush at any point covered or extended onto the gravel or traveled portion of Dugway Road.
Vedder had planted trees in the right of way to aid in flood control, and the tree trunks were within three feet of the gravel, traveled portion of the highway. Vedder was aware of the situation about which he had received complaints before the accident, but he did nothing about it because he was waiting for a piece of equipment. Brush was growing up to the shoulder of the road and stuck out into the beaten path at points south of the Sylor driveway where the accident happened.
Brush prevented the operators of the vehicles from seeing each other. When Irwin brought his motorcycle to the edge of the gravel, he could not see a car length to the south because of the brush which was 12 to 15 feet high and so heavy on the right side of the road that for 50 feet south of the point of the accident the brush prevented Kenneth from seeing the driveway.
Hume and Vedder contend that they owed plaintiff no duty: (1) To cut and remove brush, trees or other growth off the side of the traveled portion of the road for visibility at or near a private driveway; (2) To install or maintain any signs in regard to visibility at or near a private driveway. The Court agrees.
The only statutory requirement for the removal of brush from town highways is Section 140(7) of the Highway Law, which requires the town superintendent to '* * * cause briers, brush and noxious weeds growing within the bounds of town highways to be cut and removed between July fifteenth and August fifteenth, and as many other times as he may deem necessary, in each year.'
This statute is not to provide a view, but for reasons of health to remove 'briers, brush and noxious weeds.' 'Brier' means: 'Any of various thorny plants or bushes, especially a prickly-stemmed rosebush.' (The American Heritage Dictionary, William Morris, Editor, 1969) 'Brush' means: 'A dense growth of bushes or shrubs.' (Ibid.) 'Noxious' means: 'Injurious or harmful to health or morals.' (Ibid.) 'Weed' means: 'A plant considered undesirable, unattractive, or troublesome * * *' (Ibid.)
No mention is made in this statute of 'trees' or 'leaves,' yet these are the two most common obstructors of view, especially when in full bloom between July fifteenth and August fifteenth.
It is presumed that private owners abutting...
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