Wager v. State, 31236
| Decision Date | 17 June 1959 |
| Docket Number | No. 31236,31236 |
| Citation | 187 N.Y.S.2d 445,8 A.D.2d 236 |
| Parties | William WAGER, Claimant-Appellant, v. STATE of New York, Defendant-Respondent. Claim |
| Court | New York Supreme Court — Appellate Division |
N. LeVan Haver and Charles H. Gaffney, Kingston, for claimant-appellant.
Louis J. Lefkowitz, Atty. Gen., , for defendant-respondent.
Before FOSTER, P. J., and BERGAN, COON, GIBSON, and HERLIHY, JJ.
In the first appeal in this case (285 App.Div. 1199, 140 N.Y.S.2d 869, 871) the judgment of the Court of Claims dismissing the claim was reversed and a new trial directed. The Court of Claims was then of opinion that although the State had been shown negligent in the manner in which it maintained the highway approaching a bridge at the outskirts of Kingston at the site of the accident where claimant was injured, such negligence was not shown to have been a proximate cause of the accident.
The court had declined to pass on the question of the contributory negligence, if any, of the claimant and had declined to make any finding on the proximate cause of the accident. In remitting the case this court was of opinion that on the new trial 'facts pertaining to the issues which the Court of Claims did not find it necessary to reach can be adduced' and on such facts 'determination can be made.' This court noted especially there had been a failure to call as a witness William Rubin, the driver of the car in which claimant was riding when injured.
On the retrial of the case the driver was called as a witness. He testified as to the accident that 'I have no recollection of it whatsoever'. He had sustained some injuries in the accident. Other proof on the new trial did not add substantially to the factual showing previously made.
The Court of Claims after the new trial made a finding that the State was 'guilty of negligence in the maintenance, repair, design and construction' of the road 'where said accident happened' and that the State had due notice of the condition but found that the claimant had 'failed to prove' that this negligence 'was the proximate cause of the accident'.
The court, however, also refused to find that the negligence of the driver Rubin was the proximate cause of the accident and refused to find that claimant, as a passenger in the Rubin car, was 'guilty of contributory negligence'. But the court also refused to find the converse that the claimant 'was free from contributory negligence'.
Since upon the retrial the facts have been adduced to the extent that they can, or are likely ever to be, developed, we feel required to bring the issues to resolution and to decide the case as well as we can decide it on the record as now made.
We agree with the finding of the Court of Claims that the negligence of the State in the maintenance of the highway at the site of this accident is established. The evidence abundantly sustains such a finding. The car in which claimant was riding as a passenger was approaching Kingston late at night on State Highway Route 28. Until a point about 600 feet from a narrow bridge over the Esopus Creek the highway pavement was 40 feet wide and constructed of concrete. The pavement then merged into a blacktop surface, narrowing gradually to the entrance of the bridge when it became only 20 feet wide, the width of the bridge.
About 400 feet from the bridge the road entered a ten degree curve and ascended several feet to the bridge level. Although there were five reflectorized signs within a distance of 1,100 feet which indicated either highway intersections, 'Pavement...
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Wager v. State
...Supreme Court of New York, Appellate Division, Third Department. Oct. 1, 1959. Motion for reargument denied, without costs. 8 A.D.2d 236, 187 N.Y.S.2d 445. ...
- Wager v. State, 31236