Barnard v. State , 52 A.D.2d 700 ( 1976 )

Appeal from a judgment, entered October 10, 1973, upon a decision of the Court of Claims which dismissed claimant’s claim against the State. Claimant, Michael Barnard, a partially sighted young man, 21 years of age, was riding as a rear seat passenger in an automobile owned and operated by one Robert Cappel in a southerly direction along New York State Route 10 in the Town of Jefferson, County of Schoharie, at about 11:15 p.m. on February 21, 1971, when said vehicle failed to negotiate a curve to the right and continued straight into County Road 13, which intersected with Route 10 at the point where Route 10 curved to the right or westerly, and into the path of another automobile proceeding northerly along Route 10 and approaching the intersection of Route 13. A head-on collision occurred and Robert Cappel was killed, as was his front seat passenger, Dave De Maria, and claimant sustained serious injuries. Both vehicles were being operated within the speed limit, neither driver had ingested any alcohol or drugs, the night was clear, the road surfaces dry and Route 10 was marked by a double yellow centerline. Snowbanks, three to five feet in height, along both sides of Route 10, obscured the guardrails. It is the sole contention of claimant that the State was negligent in the maintenance and signing of New York State Route 10 in that it erected inadequate, confusing and misleading signs northerly of the subject intersection' that tended and, in this case, did deceive the operator of the southbound vehicle to the degree that he was entrapped into thinking that Route 10 continued straight and did not curve westerly. Claimant’s expert testified that while the speed sign, 740 feet northerly of the intersection, and the sign indicating that Route 10 curved to the right, located 540 feet northerly of the intersection, were both standard in size and designed in accordance with the Manual of Uniform Traffic Control Devices of the State of New York, they were inadequate, given the topography in the area of the intersection, to instruct southbound drivers that a potentially dangerous intersection lay ahead and that such operators should be prepared to make a marked change in direction to their right. The State’s experts testified to the contrary. Citing Williams v State of New York (34 AD2d 607) and Swartz v State of New York (4 AD2d 983) the court found "that the curve and intersection warning signs, the stated speed sign, the pavement markings and the surface grading of the highway should have provided adequate warning of whatever hazard was presented by the curve and intersection” and, accordingly, dismissed the claim. We concur for the reasons given by the Court of Claims. (Cf. Weiss v Fote, 7 NY2d 579, 588; Stuart-Bullock v State of New York, 38 AD2d 626, affd 33 NY2d 418; Schoonmaker v State of New York, 32 AD2d 1005.) Herein, the State acted judiciously in signing New York State Route 10 and there is nothing in the record probatively showing that the use of the subject route over an extended period of time by the driving public gave rise to such a number of accidents that would characterize the signing plan as being inadequate. The two prior accidents relied upon by claimant are not only numerically insufficient, the road then having been in use for 43 years, they did not occur because of the reasons assigned by claimant for the happening of this accident. Judgment affirmed, without costs. Mahoney, Main, Herlihy and Reynolds, JJ., concur; Greenblott, J. P., dissents and votes to reverse in the following memorandum: