Opinion
June 28, 1949.
Appeal from Court of Claims.
On April 4, 1946, decedent, Robert Haney, was operating a motorcycle on the Cohoes-Waterford highway. In rounding a curve the motorcycle skidded on granular material on the highway and lost its footing causing it to be propelled into the rear of an automobile which was parked on the highway. As a result of the collision Haney died on April 9, 1946, from injuries which he received in the accident. The court below found that at the time of the accident there were stones, gravel, dirt and debris lying thickly on the highway in question and as the result of the condition of such highway the motorcycle which the decedent was operating slipped and skidded causing the decedent to lose control of its movement and that the skidding was due entirely to the fact that debris, gravel, stones and granular material were permitted to remain on the surface of the highway. The accident occurred without any negligence on the part of the decedent. Prior to his death the decedent was partially conscious and experienced great pain. The court also found that numerous other accidents had occurred on the portion of the highway where decedent's motorcycle skidded and the State had ample notice of the dangerous condition of the highway. It failed to give adequate warning of such condition to persons lawfully using the highway. The court also found that claimant's decedent's death resulted solely because of the negligence of the State of New York, its officers and agents. The proof sustains the findings. Judgment in favor of the claimant and against the State of New York affirmed, with costs to the claimant. The court finds that the damages awarded claimant were adequate compensation and the judgment in the cross appeal by claimant is affirmed, without costs. Foster, P.J., Heffernan and Bergan, JJ., concur; Brewster, J., dissents, in the following memorandum, in which Santry, J., concurs: I dissent upon the grounds: (a) that there was not sufficient evidence to justify a finding of any negligent act or omission on the part of the State which was a proximate cause of the fatal accident of claimant's intestate, and (b) that the weight of the credible evidence establishes that intestate's death was caused by his own negligence. [ 193 Misc. 924.]