Summary
In Cruise v New York State Thruway Auth. (28 AD2d 1029, 1030 [1967]), the Appellate Division, Third Department, found that "the [trial] court was required [by CPLR 4511 (a)] to take judicial notice of" certain regulations of the New York State Thruway Authority.
Summary of this case from MIA Acupuncture, P.C. v. Praetorian Ins. Co.Opinion
October 24, 1967
Appeal by the New York State Thruway Authority from a judgment of the Court of Claims, awarding claimant damages for personal injuries and damage to his car sustained when he struck a storm drain located in the center mall of the Thruway. On September 29, 1963, at about 11:30 P.M. claimant was proceeding at about 60 miles per hour in a southerly direction on the Thruway a few miles below Harriman, N.Y., when allegedly he felt one of his tires beginning to go flat. Claimant testified that at the time he was in the center lane passing a line of five or six cars on his right and fearing a collision with such vehicles and noting that there were no vehicles behind him or to his left swerved across the left hand lane into the center mall and applied his brakes. Claimant proceeded some 50 yards into the mall towards its center when he hit the storm drain with enough force to knock its 300 to 400 pound cover completely off its foundation. Claimant explained that he had proceeded so far into the center of the mall instead of stopping in the left hand lane or on the shoulder because he feared his car might be mistaken by following traffic for a vehicle parked on the roadway. The trial court in finding liability on the part of the appellant held that since he could not swerve to his right "claimant acted properly in directing his vehicle onto the center mall", that "as a matter of law that the claimant had the right to enter upon the mall", particularly in an emergency, that appellant was "bound to make the mall safe for such use", that appellant "was negligent in the construction and/or maintenance of the storm drain", that such negligence "was the proximate cause of the accident", and that "claimant [was] free from contributory negligence." We cannot agree with these conclusions of the trial court. Initially considering the record as a whole we are unable to find that the trial court's determination that the storm drain was raised above the level of the ground enough to be a danger to one proceeding properly on the mall is supported by the weight of the evidence. Clearly the existence of the ditch and storm drain in the mall does not permit an inference of negligence (see Kinne v. State of New York, 8 A.D.2d 903, affd. 8 N.Y.2d 1068), and there is absolutely no proof as to the condition of the storm drain here involved or in particular that any part of the storm drain was above the ground at the time claimant's vehicle struck it. There is thus no basis in the record for the trial court's conclusion that the "raised storm drain hidden and camouflaged by grass constituted a trap on the center grass mall." The trial court's assumption that the storm drain was raised is based primarily on the damage inflicted to the car, but it is equally inferable that if this low car had in fact a flat tire when it entered the drainage ditch its bumper could have dislodged the cover from its seating even if it were located at ground level. Where there are equally inferable proximate causes of an accident one of which will not sustain liability, the claimant has not met his burden ( Bourcheix v. Willow Brook Dairy, 268 N.Y. 1; Scharff v. Jackson, 216 N.Y. 598; see 2 Harper James, Law of Torts, p. 1068). Secondly, the trial court erred in finding that "as a matter of law" claimant was entitled to proceed upon the mall. The regulations of the New York State Thruway Authority (now 21 NYCRR 103.4 [a] and 103.8), which the court was required to take judicial notice of (CPLR 4511, subd. [a]), clearly establish that claimant was not entitled to voluntarily enter the mall area. The trial court was therefore not justified in summarily brushing aside the effect of these regulations on the facts of the case as developed and thus to conclude that as a matter of law claimant was properly on the mall. Finally, we cannot concur in the court's determination that claimant was free from contributory negligence. Assuming the alleged emergency, we nevertheless find that claimant's leaving the paved portion of the highway, when there was no one behind him or in the lane adjacent to him on his left, to proceed into an unpaved area at a speed of at least 50 to 60 miles per hour with only his headlights to illuminate the way and to proceed far into the center of the mall, amounted to contributory negligence. Judgment reversed, on the law and the facts, and claim dismissed, without costs. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.