
    Richard Percival, Claimant, v. State of New York, Defendant.
    (Claim No. 36926.)
    Court of Claims,
    March 7, 1962.
    
      Bundy & Gallagher (John Henley and Rudolph V. Parr of counsel), for claimant. Louis J. Lefhowits, Attorney-General (Stanley V. Scott of counsel) and Coulter, Fraser, Carr, Ames <& Bolton (Robert Coulter of counsel), for defendant.
   Richard S. Heller, J.

This is a claim for damages arising from an accident which occurred on Route 31, a State highway running from Cicero to Bridgeport.

Route 31, a two-lane highway, was under repair and as part of this work various excavations were made to a depth of eight inches and of varying lengths. These excavations were for the full width of one lane, so it was necessary for any traffic to proceed into the other lane to pass the obstructions.

As claimant was driving easterly shortly after midnight on June 21,1959, his car went into the third or last excavation in a series of three. The claimant suffered personal injuries and his car was damaged.

It was established that claimant saw the original signs warning of construction and that he also noted other signs, flashing lights and flares as he proceeded toward Bridgeport.

He noted other excavations, all on the south .side of the road, and crossed over to the north lane to pass these. Unfortunately, he failed to pass the third excavation mentioned and his car went into this hole.

It is established that in front of the excavation he went into there was a barricade and two flashing lights, one red, one yellow. Flares preceded these lights and the barricade along the center line of the highway.

Claimant’s position is that there were no lights and no barricade. He made much of the fact that there was no night watchman patrolling the highway as required. It seems to the court upon the evidence in this case that all was done that could have been done to protect the traveling public and the failure to patrol was immaterial.

The motion to dismiss made at the close of the case upon which the court reserved decision is granted and the claim is dismissed. The foregoing constitutes the written and signed decision of the court upon which judgment may be entered.  