Proctor v. Town of Colonie

tiffs Frederick Proctor and Bernice L. Rivenberg were riding as passengers came in contact with a tree stump along the shoulder of the road. The undisputed facts are briefly as follows: That the said Boght Road was owned and under the control of the defendant town and for which it received State aid. The road ran generally in a north and south direction and was at or near the scene of the accident in a varying width of from approximately 22 to 19 feet. The road was level but at or near the point of the collision there was a sharp curve which the engineer testified as being a 25% curve. There were two signs some distance south of the curve on the east side of the road, one of which read “ Slippery When Wet” and the other being a reflected button sign indicating a curve to the left as shown in the exhibits. Approximately five years prior to the accident a tree on the east side of the road had been removed because it was either dying or dead and the stump in question as shown in the various exhibits was left along the side of the road. On the night of the accident, the defendant Robitaille was operating his car in a northerly direction on the said road with his headlights on. It was a clear night and the pavement was dry. Bernice L. Rivenberg was riding in the middle of the front seat, Frederick Proctor was riding on the right front seat and the car as it approached the curve and at the time of the collision was traveling approximately 35-40 miles per hour. The three people in the ear testified that as they were approaching and were about at or in the curve, the headlights of a car coming from the opposite direction blinded them and that “ shortly ” — “ immediately ” — “ almost at the same time ” — there was crash. The defendant driver admitted that the lights of the oncoming car blinded him and that he pulled to the right. There is no dispute as to the manner and method in which the automobile of the defendant was being operated at the time of the collision. So far as the town is concerned, there is a serious dispute concerning a shoulder along the east side of the road, there being testimony from various witnesses, including one of its witnesses, that for a distance of approximately 100 feet south of the stump there was a shoulder level with the road and about a foot or foot and a half wide. The location of the stump as to its proximity to the road was estimated as being from 26 inches to 2 to 3 feet and that it was elevated above the road from 1 to 2 feet. All of the parties exhibited pictures of the scene of the accident showing the location of the stump from different directions and angles. The defendant witness Wilson identified plaintiff’s Exhibit 15 as correctly showing the stump and that 6 feet south the shoulder banks and raises off the macadam. This witness also testified that on the night of the accident he observed some skid marks which he described as starting at the stump and going about 100 feet along the east shoulder of the road and which he outlined on defendant town’s Exhibit F, and additional marks on the southerly lane on the west side of the highway 30 to 40 feet south which he outlined on plaintiff’s Exhibit 1, all of which markings on these and the various other exhibits the jury had a right to consider in determining the factual issues. The question then is the predication of negligence by the verdict of the jury as to the Town of Golonie. There is no dispute that if the stump created a hazardous condition for which the town was liable, it was done by their own act when the tree was removed. While the question has not been raised, this constituted notice in accordance with subdivision 1 of section 215 of the Highway Law. This was a sharp and dangerous curve, the width of the road and shoulders was variable approaching and in the curve and there were no signs to reduce speed. This is the testimony of all the witnesses in varying forms and degrees and is demonstrated silently but effectively by the photographs of the respective parties. In these days of constant, continuous and congested vehicular traffic, the duties and responsibilities of a town

(receiving State aid, Highway Law, § 284) in the repair and improvement of its system of roads require reasonable care and the foreseeability of a dangerous condition, particularly if caused or created by its own act. In 1909 (Sweet v. Perkins, 196 N. Y. 482 ) an approaching automobile frightened the horse of plaintiff causing the attached wagon to swerve to the side of the road into a pile of muck placed there by the defendant, tipped the wagon over and injured the plaintiff. The question of whether the pile of muck or the automobile or both caused the accident resulted in the court saying at page 485: “ If the negligent acts of two, or more, persons concur in contributing to an accident, the injured person may hold them, jointly and severally, liable. Where concurrence in causes is charged, the test is, simply, could the accident have happened without their co-operation? (Ring v. City of Cohoes, 77 N. Y. 83 ; Leeds v .N. Y. Tel Co., 178 ib. 118).” In the same case with reference to the use of the highway, the court said at page 486: “ The whole of the highway, as laid out and appropriated, is for the public use, and it is immaterial that but a part of it has been worked by the authorities. The rule relating to encroachments on highways is not confined in its operation to the track beaten by travelers; it embraces all parts of the highway (See Tinker v. N. Y. O., & W. Ry Co., 157 N. Y. 312 ; Callanan v. Gilman, 107 ib. 360; Wood’s Law of Nuisances, sec. 248; Penal Code, sec. 385.) ” (Shaffer v. State of New York, 256 App. Div. 1053 .) In Trabisco v. City of New York ( 280 N. Y. 776 ), the plaintiffs were passengers in an automobile which collided with a pole owned and maintained by the defendant Staten Island Edison Company. The accident happened on a sharp left turn where the asphalt portion was 18 feet in width with six inches of Belgian blocks on each side, beyond which was a dirt shoulder a few inches below the level of the pavement and the pole in question was about two feet from the edge of the pavement. So far as the city was concerned, there was evidence that the Belgian blocks were in a loosened condition, that they shifted under the weight of his automobile causing it to dip down partly to the dirt shoulder and that in attempting to get back on to the asphalt portion of the road, he sideswiped the pole. The order of the Appellate Division (Trabisco v. City of N. Y., supra) reversing on the law the judgment hi favor of the plaintiff was reversed in the Court of Appeals with the following comment: “We think the issues of negligence and proximate cause were for the jury.” (Emphasis supplied.) Williams v. County of Saratoga ( 291 N. Y. 782 ) involved the question of a curve to the left and that the automobile driven by the plaintiff’s intestate failed to make the curve at nighttime, went off onto the right shoulder of the road and struck the trees on the right which were close to the macadam. While in this case there was evidence of prior accidents, the trees were not part of the shoulder of the road although close to the macadam. A verdict in favor of the plaintiff was affirmed. In Goodwin v. State of New York ( 298 N. Y. 873 ) the driver recovered under circumstances somewhat analogous to the present. It seems to me in the present ease from an examination of the testimony of the witnesses and the various exhibits presented by all of the parties that a question of fact as to town’s negligence was presented particularly as to whether the stump was part of the shoulder of the road. I reiterate defendant’s own witness described the shoulder along the east side of the road south and approaching the stump and constantly referred to various exhibits as correctly showing the condition as it existed thereon. The charge of the court as to the duties and responsibilities of all of the parties was complete in every detail and there were no exceptions or requests to charge by any of the counsel for the respective parties. Negligence and proximate cause so far as the town was concerned, under the circumstances, were questions of fact for the jury. In my opinion, the judgment and order should be affirmed.