Opinion
February 20, 1962
Appeals from judgments of the Court of Claims dismissing claims which alleged that the State was negligent in the construction and maintenance of a highway and in the failure to warn of a dangerous condition, whereby in the nighttime claimant Gary's southbound tractor and claimant Maislin's trailer and its cargo left the east side of the highway after negotiating a 6-degree curve to the left, followed by a tangent of 141.7 feet, and entering a 15-degree curve to the right, on a descending grade; the vehicle severing a power line pole, with the result, according to the inferences urged by claimant administratrix, that her intestate, the operator of the tractor-trailer, after leaving the wrecked vehicle some distance down an embankment and returning to and walking upon the highway, was killed upon coming in contact with the power line. The accident was unwitnessed and there is no direct evidence as to what caused the vehicle to cross the highway and go over the embankment. "When an automobile swerves and leaves the road for no definitely assignable reason, it is altogether possible that the accident was due to either of several causes, the failure of the steering gear or a lapse on the part of the driver. * * * In * * * such cases the balance of probabilities between causes which entail liability and others which do not is equal enough so that an inference of fact which entails liability is the result of mere speculation." ( Tortora v. State of New York, 269 N.Y. 167, 170.) When recovery must rest on circumstantial evidence, "the inferences of negligence and proximate cause must be the only ones that can fairly and reasonably be deduced from the facts." ( Boyce Motor Lines v. State of New York, 280 App. Div. 693, 696, affd. 306 N.Y. 801.) From the physical circumstances and the purely neutral evidence in this case no inference as to proximate cause may fairly be drawn, and claimants have failed to sustain the burden of proof with respect thereto. The judgments of dismissal need not rest solely on this ground, however, as we find further, and contrary to the principal contentions now urged by claimants, that the signs warning of the curves and grade were adequate. These included two reflectorized or illuminized signs indicating reverse curves and a speed of 30 miles per hour, the first a diagonally shaped 24-inch sign and the second a 66-inch square sign; and these were followed by an enlarged wooden sign 9 feet long and 6 feet high, painted yellow and black, warning of sharp curves, hill and crossroad. Claimants urge that this large sign was not reflectorized but they failed to show that it was not clearly visible at night to the operator of a southbound vehicle. Judgments unanimously affirmed, without costs. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.