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GEORGIA E. HARVEY v. NEW YORK STATE THRUWAY AUTHORITY ET AL. (06/17/68)
COURT OF CLAIMS OF NEW YORK
Claim Nos. 44828, 44801
1968.NY.42144 <http://www.versuslaw.com>; 301 N.Y.S.2d 909; 59 Misc. 2d 1079
June 17, 1968
GEORGIA E. HARVEY, AS ADMINISTRATRIX OF THE ESTATE OF MAX W. HARVEY, DECEASED, CLAIMANT,v.NEW YORK STATE THRUWAY AUTHORITY ET AL., DEFENDANTS. GENE ADAMS REFRIGERATED TRUCKING SERVICE, INC., CLAIMANT, V. NEW YORK STATE THRUWAY AUTHORITY ET AL., DEFENDANTS
Harold Horowitz, Frank Bayger and James Hall for Georgia E. Harvey, as administratrix, claimant.
Adams, Brown, Starrett & Maloney (Edmund S. Brown, Jr., of counsel), for Gene Adams Refrigerated Trucking Service, Inc., claimant.
Louis J. Lefkowitz, Attorney-General (James G. Austin of counsel), for defendants.
John Carroll Young, J.
The above claims which arose out of an accident which occurred on November 3, 1964 and allegedly caused by negligence of the State of New York, were duly and timely filed.
On November 3, 1964, the above-named Max W. Harvey, now deceased, was an employee of claimant Gene Adams Refrigerated Trucking Service, Inc., for which corporation he had been employed about 12 years; the proof showed that he was thorough and efficient and that his work habits were "ideal".
On said date at about 11:00 p.m., he was operating a tractor trailer owned by said corporation and upon its business, in an easterly direction on the New York State Thruway between the City of Buffalo and the City of Syracuse, N. Y. Except for the existence of a combination of smoke and fog, hereinafter referred to as "smog", which existed at the location hereinafter mentioned, the weather was clear; the pavement was dry.
The proof showed that in the area of the so-called Montezuma Swamp through which the Thruway extends and approximately in the area between mileposts 313, 314, 315 and 316 (the mileposts being numbered upward from east to west, milepost 316 was furtherest west) there had existed at various points from time to time for a period of about two weeks prior to November 3, 1964, a mixture of smoke and heavy fog called a "smog" condition which at times had been so severe and the smog so dense that on Saturday, October 17, 1964, maintenance men were called out at 9:30 p.m. to set out pot flares between mileposts 316 and 312; at first these flares were set out spaced at various distances along the shoulder of the highway, but this proved to be an unsafe practice; thereafter, a system was adopted whereby the flares were set out in clear areas preceding the smog areas.
On Sunday, October 18, 1964, at milepost 314.4, the smog was so dense that a maintenance truck operated by Thruway employees sent out to "patrol" the smog area and to set out warning flares, at 2:30 a.m. had collided at milepost 314.4 with another vehicle, striking the car in the rear.
Considerable proof was introduced from the work records or maintenance diary of the New York State Thruway and the testimony of the supervisor of the section of the Thruway in which the accident out of which this claim arose occurred, showing the extent and nature of the efforts made by the maintenance workers to protect the persons traveling on the Thruway from the dangers presented by the smog condition; this proof showed that periodically over more than two weeks prior to November 3, 1964, smog conditions existed from time to time wherein the visibility on the Thruway between mileposts 313 and 316 was practically zero, enveloping the area in banks of smog, with alternately clear areas intervening between impenetrable clouds, wherein any objects more than three feet distant were indiscernible; the proof also showed that these maintennance men and those in supervisory capacity were called out at night at various times while off duty and at their homes, to perform such work. Their procedure was to place the pot flares when needed and to remove them as soon as the smog dissipated and the need for them ended.
Although there were periods of time when no smog was present, the condition had become so commonplace that on November 2, 1964 two reflectorized warning signs each four feet high and six feet wide, suspended on "A" type frames, were placed across from each other facing eastbound traffic on each side of the eastbound lanes about at milepost 316.7, one on the south shoulder of the eastbound driving lane and one on the mall to the left of the eastbound passing lane. The legend on each sign which read in capital letters:
A H E A D consisted of white letters on reflectorized plywood, the letters in the words "REDUCE SPEED" being six inches high and the letters in the words "SMOG AHEAD" being 10 inches high; in front of and beneath each sign were placed four kerosene pot flares.
However, these signs facing eastbound traffic placed at milepost 316.7 were located two miles west of the point where the accident occurred and in this intervening distance of two miles no warning of any kind whatsoever was posted or located.
A pair of similar signs facing westbound traffic was placed on both sides of the westbound lanes at milepost 312.4.
On November 3, 1964, the day of this accident, which was election day, only one maintenance man was on regular maintenance patrol in the area and this was only from 6:30 a.m. to 10:30 a.m., no other maintenance man was on duty all that day from 10:30 ...