Citta v. State

Per Curiam. Claimant appeals from a judgment dismissing her claim for damages she sustained because of the alleged negligence of the State in maintaining a bridge. Claimant while driving on a public highway about 10 o’clock in the evening skidded on ice on the bridge causing property damage and personal injuries. The alleged negligence of the State is based on its failure to sand the bridge after having received actual or constructive notice of the icy condition thereon. (Cf. Cohen v. City of New York, 204 N. Y. 424,426-427.) The claim was dismissed following trial in 1962. We reversed and granted a new trial (30 A D 2d 636). Upon the new trial (before another Judge of the Court of Claims) the transcript of testimony received at the first trial by stipulation of the parties was received in evidence. Claimant offered no additional proof [289] but the State called a maintenance man (Pfleuger) employed by it at the time of the accident, who had not been a witness at the first trial. The factual issue as to whether or not the State ¡received actual notice of the icy condition of the bridge and thereafter delayed for several hours before remedying the condition was presented at the first trial. A State trooper testified that at 7:40 in the evening (after having driven over the bridge) he telephoned Pfleuger and told him that the bridge was icy and needed sanding. There was documentary proof, which in part substantiated this testimony, in the form of the log kept by the State Police which showed that the call had been made at the stated hour with the additional notation ‘ ‘ Route 5 in need of sanding. Advised that crew would be out.” The Judge who presided at the first trial, apparently believed the testimony of the trooper and found as a fact ‘ ‘ That at approximately 7:40 p.m. Trooper Carr telephoned Mr. Pfleuger and informed him of the dangerous condition of the bridge ” and further found that Pfleuger lived less than one mile from the bridge. Pfleuger’s testimony at the second trial is most unsatisfactory. He had little or no independent recollection of the day and evening in question but relied on a time sheet kept by him and his wife. On the subject of the crucial telephone call made by Trooper Carr, Pfleuger vacillated between an unqualified denial that he received the call to an admission that he had no present recollection of having received it. It was his version that he received a call from a local police department and thereafter followed his usual route of 25 or more miles which brought him to the bridge “ sometime between 8:00 and (midnight) * * * because that’s the last place that I’m instructed to do.” The accident, as stated, happened about 10:00 p.m. but Pfleuger had no recollection of having heard about an accident that night on the bridge. In this posture of the proof on this factual issue, the Judge, who presided at the second trial, found that the call was made by Trooper Carr and that his message to Pfleuger 11 was as shown on the police log that Route 5 needed sanding.” It follows that the court ini substance found that the trooper had never told Pfleuger that the bridge was icy and needed sanding but only that Route '5 did. Thus, on this crucial issue we are confronted with the finding of the Judge, who heard the trooper testify, that he believed the witness while the second Judge, who took the testimony from the cold record, found the testimony to be false. [290] We reverse the factual finding so made following the second trial and adopt the finding made following the first trial. It follows that the delay of the State for a period of 2% to 4 hours in sanding the bridge after having received actual notice of its icy condition constituted negligence. The judgment should be reversed and the action remitted to the Court of Claims for an assessment of damages.