Opinion
November 16, 1961
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ. [ 23 Misc.2d 772.]
The State has appealed from a judgment of the Court of Claims entered in claimant's favor after a trial. The State in effect concedes its negligence but contends that the claimant should not have been found free from contributory negligence. On Sunday September 7, 1958 at about 6:00 P.M. respondent was driving her car in a westerly direction up Devil's Elbow Hill on Route 17 near Tioga Center, Tioga County. It had previously rained to some extent. The court found that as she proceeded along the westbound lane the front right wheel of her car dropped into a 4 1/2-inch depression along the northerly edge of the highway. That her car went out of control and swerved to the left into the eastbound lane where it collided with a car driven by one Gerald Bowes. Bowes and his passengers, along with respondent Pace sued the State and were given awards below. The State appeals solely from the Pace award contending that her negligence bars her from recovery. The photographs in exhibit clearly show a depression of a perilous nature and a generally ragged, uneven road edge. The State claims, in short, that the depression which initiated the loss of control was a shoulder depression, not a pavement depression and thus, in order for respondent to absolve herself from contributory negligence, she would have had to show an emergency situation which compelled her to take to the shoulder, relying on the well-settled law that although the State has a duty to maintain shoulders in good repair, it is negligent to operate a vehicle on the shoulder in the absence of any emergency compelling such operation. However, it seems obvious from the photographs and the court has found on the entire record that the depression simply was a part of the paved portion of the road. Respondent had a right to be there even if it was on the extreme right-hand part of the road. The court below stated: "It is established that the north edge of the highway was jagged, rough and uneven, and that adjacent to the edge were holes which seemed to be in the paved portion of the highway and immediately in front of the paved portion when it cut back into a narrower highway." The photographs show that the paved portion runs immediately in front of the subject hole and, in a series of two jagged steps, a foot or so of highway width is abruptly lopped off. The highway then proceeds westerly with a continuing uneven edge, chipped away it seems into a depressed ditch-like shoulder. Certainly, on this record the court was not compelled to accept the State's contention that the hole was on the shoulder rather than on the paved portion — the contention upon which its appeal stands or falls. In our opinion the question here is wholly factual and we see no reason on this record to disturb the findings of the Court of Claims or its judgment entered thereon. Judgment unanimously affirmed, with costs to respondents.