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Davis v. State

Supreme Court of New York, Appellate Division

December 16, 1954

Davis
v.
State

Page 66

APPEAL from a judgment in favor of defendant, entered May 28, 1953, upon a decision of the Court of Claims (LOUNSBERRY, P. J.), dismissing the claim of appellant.

COUNSEL

John J. Nicit and Theodore C. Bonney for appellant.

Nathaniel L. Goldstein, Attorney-General (John R. Davison and Wendell P. Brown of counsel), for respondent.

BERGAN, J.

On December 2, 1951, decedent was driving a tractor-trailer unit heavily loaded with rolled steel near Norwich in a northerly direction on Route 12 and came in collision at the intersection of Route 320 with another vehicle. The accident caused decedent's death.

The theory of liability against the State suggested by the claimant is that there was a failure by the State to 'afford an adequate sight distance' at the intersection to the driver of the vehicle which was turning out of Route 320 left into Route 12 at the time of collision. The Court of Claims has entered judgment dismissing the claim after a trial.

The place of accident is a 'T-type' intersection in which Route 320 connects from the east with Route 12, but does not cross it. Looking in the direction of Route 12 from Route 320 as the driver of the other vehicle was approaching it, Route 12 appears from the photograph of the scene to be in plain sight and the pavement of Route 320 widens out in both directions to meet the pavement of Route 12. In addition to this clearly visible intersection in approaching Route 12 there was a 'T' intersection sign; nearer to the intersection, a Route 12 sign with a right and left arrow; and sixty-five feet from the intersection there was a through-traffic 'Stop' sign.

There were painted stop bars and a 'Stop' sign on the pavement close to the line of Route 12. The approach to the intersection in the direction decedent had been coming on Route 12 was also marked by appropriate signs. In the area formed by the southeast angle of the roads as they came together was a restaurant, but it is not claimed that the building itself was a factor of visibility in causing the accident.

Claimant's case rests upon interference with the vision of the driver who came into the intersection from Route 320. This interference is claimed to have been caused by two maple trees twenty-four inches in diameter and twenty-four feet apart, standing in front of the restaurant. These grew between the restaurant and the road, seven and one-half and eight feet respectively

Page 67

from the pavement. Interference with vision is also claimed to have been caused by two cars said to have been parked side by side north of the trees and 'close to the highway'.

The driver testified that he was 'prevented' from seeing 'for hardly any distance to the south' because of the 'two cars parked close to the highway'; because the two trees obstructed his view 'somewhat'; and because 'it was hazy anyway'. In order of sequence he placed the haziness first as a reason why he could see 'Practically nothing'.

The restaurant was not open at the time of the accident; there is proof to suggest rather strongly that both before and after the accident no cars stood along the side of the road 'near the pavement' in the position ...


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