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Applebee v. State

Supreme Court of New York, Appellate Division

July 8, 1954

OLIVE APPLEBEE, as Administratrix of the Estate of CHARLES W. APPLEBEE, Deceased, Appellant,
v.
STATE OF NEW YORK, Respondent. RUTH I. MCGUIRE, Individually and as Administratrix of the Estate of CHARLES J. MCGUIRE, Deceased, Appellant,
v.
STATE OF NEW YORK, Respondent. Claim No. 31652. Claim No. 31183.

Page 533

APPEALS in each of the above-entitled actions from a judgment in favor of defendant, entered June 11, 1953, upon a decision of the Court of Claims (RYAN, J.), dismissing each claim on the merits.

COUNSEL

Charles Dengel, William L. Shumate and Thomas C. Cusack for Olive Applebee, appellant.

Bradford F. Miller for Ruth I. McGuire, appellant.

Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Henry S. Manley of counsel), for respondent.

VAUGHAN, J.

The two claims, the subject of these appeals, arise out of collisions involving two automobiles and a Greyhound bus, which occurred at the intersection of Fisk Road and Route 96-A in the town of Romulus, Seneca County, New York. Route 96-A is a heavily traveled two-lane concrete State highway. It runs in a generally northerly and southerly direction and is intersected by Fisk Road, a black top macadam county highway eighteen feet in width which runs in a generally easterly and westerly direction.

November 4, 1951, the day of the accident, was clear and sunny and the road surfaces were dry. Around two thirty o'clock on the afternoon of that day an automobile being operated by Marilyn Steinmiller in an easterly direction along Fisk Road proceeded without stopping into the intersection where it was struck by an automobile being operated in a southerly direction along Route 96-A by Joseph McGuire. The impact forced the colliding cars into the pathway of the approaching northbound bus which collided with the McGuire car, causing that car to again collide with the Steinmiller car. Charles Applebee, the operator of the bus received serious injuries from

Page 534

which he died some four hours later. Joseph McGuire, the operator of the southbound car, was killed at the time of the collision.

As the Steinmiller car approached the intersection, it was moving about fifteen to twenty miles an hour. When the car reached a point approximately twenty feet from the intersection, the operator having observed that she was approaching an intersection, took her foot off the accelerator and slowed down. About that same time she made observations to her left but saw nothing approaching from that direction. Her sight distance to the left or toward the north along Route 96-A was somewhat restricted by the Varsity Inn which was located on the northwest corner of the intersection some twenty feet west of the pavement of Route 96-A.

The New York State Traffic Commission, by order dated January 10, 1949, and by correcting order dated January 28, 1949, directed the erection and maintenance on Fisk Road of signs directing drivers of vehicles to bring their vehicles to a stop before entering the intersection. In compliance with that order, stop signs were erected and thereafter maintained until September 17, 1951, when the stop sign at the southwest corner of the intersection was knocked over by an automobile. The State highway department was notified the same day but failed to take any steps to re-erect or repair the same prior to the accident under review.

Among the warrants for the erection of stop signs are volume and/or speed of traffic. The record discloses, and the court in its decision recognized, that Route 96-A 'was heavily travelled by automobiles at high speeds'. We therefore assume, for the purposes of this appeal, that the orders directing the erection and maintenance of stop signs were justified because of the dangerous character of the intersection.

The Court of Claims found that both the deceased Applebee and the deceased McGuire were free from negligence contributing to the accident; that Marilyn Steinmiller was guilty of gross negligence which was the sole proximate cause of the accident and that the accident was not due to negligence of the State of New York, its ...


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