Cramer v. State , 4 A.D.2d 798 ( 1957 )

Appeal from a judgment of the Court of Claims which dismissed the claim upon the merits after a trial. The claim is based upon the contention that the State failed to properly maintain the highway known as Route 9-R and that a defect in the highway caused plaintiff to lose control of his motorcycle with resulting injuries. The road involved is 20 feet wide, level, and constructed of bituminous material commonly known as a macadam road. Claimant alleges he struck a hole in the road. Actually the hole is really an indentation in the extreme edge of the macadam. At about 5:30 p.m. on July 30, 1952, claimant was riding a motorcycle and was following another motorcycle ridden by a coemployee. When the motorcycle which claimant was following swerved to the right claimant did likewise. The first motorcycle negotiated the area without difficulty, but in some manner claimant lost control of Ms motorcycle and was injured. There is no evidence of any obstruction in the 10-foot lane in which claimant was entitled to travel except testimony of some loose gravel or dirt. The Court of Claims has found: “ There was no hole in the road where the motorcycles had been traveling or where the accident occurred.” We can interpret this only as a finding that claimant’s motorcycle did not hit the hole at the extreme edge of the road. The Court of Claims also found: “ There was no condition upon the highway creating an emergency ”, and “ The accident was caused by the negligent operation of the motorcycle by claimant.” We think the record presents a fair question of fact, and that there is evidence to sustain such findings by the trier of the facts. Judgment unanimously affirmed, without costs. Present — Foster, P. J., Bergan, Coon, Halpern and Gibson, JJ.