(dissenting). In this case the triers of the fact have found that the claimant was free from contributory negligence, although the driver of the automobile was negligent; and the State was .free from negligence. The vote was two to one against defendant’s liability. On the same ratio a jury would have divided eight to four and there would have been no verdict. It is difficult to conceive that a jury would have rendered any verdict except for plaintiff on this state of facts.
As I understand the statute (Highway Law, § 176, as amd. by Laws of 1922, chap. 371), supplemented by the Enabling Act (Laws of 1924, chap. 647), the same rule of liability is imposed on the State as upon towns or individuals. (Best v. State, 203 App. Div. 339; affd., 236 N. Y. 662.) I will assume further that the truck parked partly upon the road was not a defect in the highway although that question is debatable. (See Whitney v. Town of *130Ticonderoga, 127 N. Y. 40, 44; Quinn v. Town of Sempronius, 33 App. Div. 70; Treman v. State, 121 Misc. 862.)
But the parking of the truck beside a much traveled road and making a smoke screen before it, with no signals to indicate that repairs were going on or that a dangerous condition existed, constituted the negligent creation of an obstruction by the State’s employees. (Dashnau v. City of Oswego, 204 App. Div. 189; appeal dismissed, 236 N. Y. 542; Whitney v. Town of Ticonderoga, supra; Congreve v. Smith, 18 N. Y. 79.)
Plaintiff riding in an automobile as a passenger, coming around a curve where the view was obscured, could not reasonably anticipate that proceeding at a moderate pace on the right-hand side of the road would result in running into such an obstruction. The negligence of the driver, if any, could not be imputed to her. (Robinson v. N. Y. Central & H. R. R. R. Co., 66 N. Y. 11; Hoag v. N. Y. Central & H. R. R. R. Co., 111 id. 199.)
The dogmatic statement in the findings below that “ this carelessness and negligence of the driver of the automobile in which claimant was riding was the proximate cause of the collision ” seems unsound. Proximate cause is defined as follows: "That which in a natural sequence, unbroken by any new cause, produces that event and without which that event would not have occurred.” (Rider v. Syracuse R. T. R. Co., 171 N. Y. 139, 147.) To say that the sole and proximate cause of claimant’s injury was the act of the driver in proceeding through the smoke, and the obstruction played no part, seems unreasonable. In Sweet v. Perkins (196 N. Y. 482) it is said: “ There may be more than one proximate cause of an accident, if each of the causes asserted can be seen to have been an efficient one, without which the injury resulting would not have been sustained. If the negligent acts of two or more persons concur in contributing to an accident, the injured person may hold them, jointly and severally, liable.”
If the driver was negligent, he was concurrently liable with the State, and the plaintiff might sue one or both. But the driver’s negligence would not excuse the State if sued alone unless it was the sole cause. (Barrett v. Third Ave. R. R. Co., 45 N. Y. 628; Ivory v. Town of Deerpark, 116 id. 476, 486; Roblee v. Town of Indian Lake, 11 App. Div. 435, 439.) It may be suggested that by greater care the driver might have avoided the accident but that does not deprive claimant of her cause of action against the State for negligence. (Carr v. Pennsylvania R. R. Co., 225 N. Y. 44, 47.)
Judgment affirmed, with costs.