Opinion
December 31, 1959
Present — Foster, P.J., Bergan, Coon, Gibson and Reynolds, JJ.
Appeal by claimant from a judgment of the Court of Claims dismissing a claim for personal injuries sustained by reason of alleged negligent construction and maintenance of a highway. On January 20, 1955, shortly after 11:00 P.M., claimant was driving his new automobile which he had purchased that day on a State highway known as Route 121 between Bedford and Cross River in Westchester County, New York. As he was negotiating a left turn he pulled his car to the extreme right of the highway and felt his right wheels drop off onto the shoulder. It is claimant's contention that the shoulder was soft and pulled him farther to the right and he eventually left the highway where he struck a tree and sustained serious injuries. Claimant had driven his automobile approximately 375 miles that day. Route 121 is a macadam road approximately 18 feet in width, marked by white center lines. A warning sign displaying an arrow curved to the left and beneath it "25 MPH" was posted on the right side of the road some distance before the curve. The night was clear and the road dry. There is no claim of any defect in the paved portion of the highway. There is no evidence that any vehicle was approaching or following claimant at the time he left the road. There is no evidence of any emergency of any nature which would require claimant to leave the paved portion of the highway. While it is the duty of the State to maintain the shoulder of a highway in a reasonably safe condition, the shoulder is not intended for travel or for use when there is nothing to interfere with travel upon the paved portion of the highway. Here the claimant, for no apparent reason, drove his car off the highway and onto the shoulder of the road. Under such circumstances the evidence sustains the finding of the trial court that no negligence on the part of the State has been shown which proximately caused or contributed to the happening of the accident. ( Shaw v. State of New York, 278 App. Div. 871, affd. 303 N.Y. 644; Miller v. State of New York, 201 Misc. 859.) Judgment unanimously affirmed, without costs.