Russell v. State , 268 A.D. 585 ( 1944 )

Brewster, J.

This is an appeal from a judgment of the Court of Claims dismissing upon the merits, after trial, the claim filed herein. The claim arises out of an automobile accident which happened on the Lake George-Bolton highway on the 4th of July, 1938, at about four o’clock in the morning. Decedent, Elinor G-. Flynn, was the only passenger in a car owned and operated by Donald 0. Cunnion. He was traveling south, that is, towards the village of Lake George, and at or near a point known as the Maupai Curve the car left the highway and struck a pole. As a result of this accident Miss Flynn was injured and died en route to a hospital at Glens Falls. •

The undisputed evidence of the soft, friable condition of the westerly shoulder in the sharp curve of the highway, within which stood a telegraph pole, but ten and one-half feet from the paved portion, along with other facts and surrounding circumstances and conditions clearly shown, and without conflict of evidence, compels a finding of negligence on the part of the State in the construction and maintenance of the highway where the accident occurred. The court below has exonerated the State in this regard. While the court did find that no negligence of the State caused or contributed to the accident, still, based as this was upon the? findings that the State’s negligence was nonexistent, there has thus been no determination of the causal relation of the State’s negligence to the accident in question. For this reason there should be a new trial, because there is evidence sufficient to sustain a finding of such causal connection. (Shaffer v. State of New York, 256 App. Div. 1053 [4th Dept.] ; Schill v. State of New York, 258 App. Div. 769 [3d Dept.] ; Taylor v. State of New York, 262 App. Div. 657 [3d Dept.], affd. 288 N. Y. 542.) I think this is so despite whatever finding the evidence justifies respecting the conduct of the driver of the car. Claimant’s intestate has been rightly absolved from any contributory negligence. The fact that the driver moved his vehicle partly over onto the shoulder to avoid the oncoming car was not negligence on his part. The shoulder was constructed and maintained, among other things, for such purpose, and for such use it was incumbent upon the State to keep it in a reasonably safe condition, taking into account the circumstances of the highway and its surroundings. Here we are immediately concerned with such use of the. shoulder by the right-hand wheels of the car for a distance of forty feet on a curve. ' The shoulder was a part of the highway. (LaRue v. Tiernan, 260 App. Div. 337, affd. 285 N. Y. 550.) If it be said the driver was negligent in having been forced off the highway by the lights of the car approaching him, his then situation and predicament could easily.be said to have brought the State’s negligence into active participation in the fatality. There were then but forty feet traveled' to the glancing collision with the pole, after which the car regained the pavement in normal position after a ¡journey of the car’s length, twenty feet. In the split-second period during that forty-foot journey the relatively unbanked and soft, friable condition of the shoulder may well be said to have been a direct cause of the collision, say naught further, even as to maintenance of such a highway in such relative position to a telegraph pole. The undisputed history of over a score of similar accidents at this very place is legitimate and persuasive proof that the improper construction of the shoulder, both in design and material, was an active cause in having held and drawn the car in which deceased was riding, to her death. To say that the sole and proximate cause of the death was the act of the driver in not having further reduced his prior speed of forty miles per hour prior to his meeting the blinding headlights, or in the extreme brevity of the subsequent time lapse, seems unreasonable. ‘ ‘ There may be more than one proximate cause of an accident, if each of the causes asserted can be seen to have been an efficient one, without which'the injury resulting would not have been sustained.” (Sweet v. Perkins, 196 N. Y. 482.) And, of course, if in the light of the clear and uncontradicted proof of the State’s negligence aforesaid, should further litigation establish such to have been a proximate cause of the accident, a right to recover would follow.

The judgment dismissing the claim should be reversed on the law and on the facts and a new trial ordered.