Opinion
June 1, 1961
Appeal from a judgment of the Court of Claims which dismissed a claim for damages for personal injuries and property damage alleged to have been caused by the negligence of the State in the construction, repair and maintenance of a State highway, whereby an automobile owned by claimant and in which she was a passenger skidded and struck a bridge abutment, causing the death of the operator and injuring claimant. The accident occurred on May 22, 1957, at about 11:30 P.M., on Route 96B, an 18-foot blacktop highway which, at a point about 3 1/2 miles southerly of Danby, extended southerly from the top of a hill for some 2,000 feet to a bridge with concrete abutments, proceeding in that distance through a 4 1/2-degree curve to the right, then on a tangent for about 300 feet and then on a 6-degree curve to the left and a tangent ending at the bridge. The lane for northbound travel had been resurfaced on the day of the accident by the application of stone and oil, the work being interrupted by heavy rain in the afternoon. All the witnesses agree that there was loose stone or gravel in some amount in the southbound lane, upon which no work had been done. The uncontradicted version of the accident presented by claimant's proof is that the car proceeded down the hill in the southbound lane, slowing to a speed of from 40 to 45 miles per hour, struck the loose stone and began to slide, and "kept sliding back and forth" until it struck the bridge abutment to the right of the pavement. Claimant called five disinterested witnesses who variously described the stones in the southbound lane on the day of the accident as "quite deep * * * a lot of stones there"; "stones scattered over it, like you took a shovel, and threw it across the road"; "pretty much a general spreading", which the witness observed when he "noticed [his] car was not handling right"; "possibly a film of light stone, and enough to cause the car to try to get out of control"; "stones sprayed all over, and piles of stone in the center * * * awful thick". One of the State's witnesses saw stones but denied that there was a "build up of an inch or two or three"; while another adopted the Assistant Attorney-General's phrase — "a light scattering"; and the resident engineer in charge of the work found a few scattered stones but no "appreciable amount". Claimant's experts said that good practice required the use of crushed stone, which would be angular, rather than the round pea gravel which seems actually to have been used, although perhaps partially crushed. There was further expert opinion that the amount of gravel was excessive in proportion to the amount of emulsion used, resulting in lack of adhesion. The proportion of emulsion said by the State engineer to have been used was the minimum under the standards which he recognized; but when shown a photograph in evidence, he conceded that, at the point depicted, either it did not "take" or the traffic had "worn it off". There was testimony, also, that the loose gravel should have been swept in conformity with customary good practice, and as to this the State's expert said merely that sweeping was the work of a maintenance crew, as "suggested" by the construction specifications, but he did not testify, and was not asked, why the stone was not swept. It appeared, further, that the rain which forced the road crew to quit work in the early afternoon at a point about one and one-half miles north of the bridge prevented union of the materials applied at that point so that the operation had to be repeated for a distance of 1,000 feet. Cross-examined on this subject, the State engineer conceded that the condition at the accident scene "could have been due * * * some to the water condition and some to the removal of the stones." It is reasonably clear, in the light of this admission, that these conditions at and north of the accident scene tended to corroborate the claim of faulty construction due to insufficient adhesive agents; but if it did not, and if this reaction of freshly laid blacktop to water was normal, then, when the rain did come, the result was reasonably to be foreseen and, at the very least, called for inspection; but, in any event, the situation, however created, existed for such time as to infer notice under the circumstances and reasonably required direct action or specific warning. The trial court, in its opinion, found that no "unreasonably dangerous condition" was causative of claimant's accident, apparently on the ground that others had travelled the highway in safety. This record, however, requires more than the application of so ready and casual a test, assuming that such is ever warranted, except as extensive traffic over a period of time and a variety of conditions may become one of the circumstances to be considered as bearing upon a question of faulty design. This was the purport of the decision in Boyce Motor Lines v. State of New York ( 280 App. Div. 693, 696, affd. 306 N.Y. 801), upon which the Court of Claims' opinion mistakenly relies, while quoting out of context the statement of the rule contended for. Indeed, one of the persons to whom the trial court's opinion alludes as safely traversing the highway was a police officer who immediately radioed warning of the slippery road. In our view, preponderant evidence established a dangerous condition due primarily to negligence in the application of the surfacing materials and in the failure to brush off the excess gravel in accordance with good practice. If the condition was aggravated by the downfall of rain, the State is, for the reasons above stated, in no way relieved and the result rendered corrective action or adequate notice even more urgent. The State contends that it gave adequate warning; and the Court of Claims found that there were "adequate signs of the danger to be apprehended". One of those so found was a 4 feet by 4 feet sign three miles or more from the scene of the accident and the others were two unilluminated 26-inch or 28-inch by 16-inch signs, "Highway Recently Oiled — Drive With Care", one more than a mile north of the scene of the accident and the other about 4,000 feet from it. In thus finding, the court relied solely upon the testimony of the State engineer. None of the witnesses on either side, except the engineer, saw either of the two smaller signs and only the engineer and one other witness for the State saw or recalled the larger and more distant one. If the weight of the evidence is not against the existence of the signs or of at least two of them, the fact that, aside from the engineer, none of a variety of witnesses saw them is sufficient to establish their ineffectiveness and inadequacy. Negligence and proximate cause have been found in somewhat comparable cases. (Cf. Canepa v. State of New York, 306 N.Y. 272, 277, as to warning signs "adequate in number and placement" upon the approach to an "uncommon danger"; Armstrong v. Bacher, 306 N.Y. 610; Haggerty v. State of New York, 275 App. Div. 981, affd. 300 N.Y. 537; Gamjian v. State of New York, 281 App. Div. 923. ) The trial court declined to pass upon the issue of contributory negligence. In our view, claimant's freedom from any negligence, direct or imputed, was established. Claimant was 46 years old and a widow. She sustained fractures, two of them severe and complicated, of the left humerus, ulna, wrist, index finger and one rib, as well as lacerations, contusions, concussion, shock and some scarring. The trial court properly found that she had incurred a 75% permanent loss of use of the left arm, which was the finding of the physician who examined her on behalf of the State; that her medical and hospital expenses aggregated $1,450.98; that she earned $3,362.89 (her weekly wages fluctuating from $13.08 to $134.49) in the 53 weeks preceding the accident while employed as a seamstress in a tailor shop, and up to the time of the trial, two and one-half years after the accident, had been unable to do that work. For her personal injuries she should have an award of $20,000 from which must be deducted $2,500 received in settlement of her claim against the operator's estate. Claimant sought damage of $850 for the destruction of her automobile but although counsel announced that the damage and certain average values had been stipulated and the court said, "I have those figures", the record does not disclose them. In the interests of justice, the claims for personal injuries and property damage should be severed and the latter remitted for determination by the Court of Claims. Judgment reversed, on the law and the facts, with costs; the claims for personal injuries and property damage severed; judgment directed for claimant upon her claim for personal injuries for $17,500; with appropriate interests and costs; and claim for property damage remitted to the Court of Claims, without costs, and a new trial ordered. Settle order. Bergan, P.J., Gibson, Herlihy and Taylor, JJ., concur.