Opinion
June 16, 1943.
Present — Crosby, P.J., Taylor, Dowling, Harris and McCurn, JJ. [ 175 Misc. 259.]
Judgment reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Certain findings of fact and conclusions of law disapproved and reversed. Memorandum: We are of the opinion that the court below was in error in holding that the negligence of the driver was the sole proximate cause of the accident and resulting injury to the claimant. The evidence in our opinion establishes that there was a defect in the highway which existed through the previous patrol season and of which the State had ample notice. (See Karl v. State of New York, 279 N.Y. 555.) The State's agent, Mr. Moulton, had knowledge of the condition which existed on the day of the accident. The State also had knowledge that from time to time a dangerous accumulation of water resulted from the defect in the highway and could have reasonably anticipated the occurrence of some such accident as happened on the day in question. We think that the negligence of the State concurred with the negligence of the driver of the automobile to produce the injuries received by this passenger claimant and that he is entitled to a recovery. All concur, except Taylor and Harris, JJ., who dissent and vote for affirmance, on the authority of Canfield v. State of New York ( 244 App. Div. 888). (The judgment dismisses a claim for damages for personal injuries alleged to have been sustained by claimant when an automobile in which he was a passenger left the State highway and collided with a tree because of negligent highway maintenance.)