(dissenting). I cannot agree with the decision about to be made. When the State’s liability for negligence of its agents is proved by rules of law applicable to individuals it may now respond in damages. (Court of Claims Act, § 12-a; Jackson v. State of New York, 261 N. Y. 134, 138.) When its negligence involves a failure by its properly delegated employees to exercise reasonable care to protect the users of State highways at points where danger is reasonably to be foreseen, the State’s liability follows if the injury complained of is the proximate consequence of such neglect of duty. It has been said by this court that “ For the protection of the persons and property of users of the highways, the duty rests upon the State to erect and maintain suitable signs or barriers along or near State highways — and upon bridges over canals — of such a character and at such points as the various circumstances presented reasonably demand. [Citing cases.] For *230a violation of such duty the State is responsible as is an individual or corporation. (Cotriss v. State of New York, 223 App. Div. 520, 523. See, also, Ross v. State of New York, 265 N. Y. 632; Johnson v. State of New York, 186 App. Div. 389; affd., 227 N. Y. 610; Sporberg v. State of New York, 226 App. Div. 113; Miller v. State of New York, 231 id. 363.)
It will be conceded, I believe, under the proof now before us, that the approach from the west to the highway underpass where this accident occurred was dangerous. There a railroad right of way, which extends north and south along the length of a steep hillside and well above a parallel valley to the east, passes over State Highway Route 20. As this highway comes from the west to the brow of the hill above the railroad, it avoids a steep descent which a continuing course directly east would encounter, by turning to the south near the top of the incline and following a straight, gradual descent down the hillside for several hundred feet to a point where by a sharp curve to the east it leads through an earthen cut directly to the underpass. As the driver of an east-bound car descends the straight stretch of road down the hillside, he gains no view of the underpass toward which he is moving until he enters the sharp curve to the east which leads into it. His view of the depressed curve and the underpass is cut off by intervening earth embankments. In other words, the risks which flow from driving down an eight per cent grade, around a sharp curve and into an underpass which is visible only at short range coalesced to create an unusual traffic hazard — a condition from which danger might have been reasonably foreseen.
. Did the State perform its legal duty to warn the claimant Earl of such danger as he proceeded in the nighttime down the straight stretch of road toward the sharp turn to the east and the underpass beyond?
Concededly there were two signs, one of which was erected six hundred and forty-seven feet west of the underpass and seven feet eight inches from the edge of the roadway. This sign was not what is variously termed a “ reflector,” “ seff-ifluminating,” or “ button ” type. It was the standard cast-iron sign with white background and black letters on which were printed the highway road number “ 20 ” and “ Warning — Curve ” with an arrow pointing to the eastbound driver’s left. A second sign was erected four hundred and ninety-eight feet four inches west of the underpass and seven feet two inches from the edge of the roadway. This second sign was not of the reflector type. It was four feet square with white background and black letters which read “ Caution — Sharp Curve — Narrow Underpass.” It is also undisputed that for a distance of nearly five *231hundred feet down the road from the second sign to the underpass there was no sign of any kind — no sign facing east-bound traffic at the bottom of the straight stretch of road warning of the sharp left turn and the underpass just beyond. The State claims that at the entrance to the underpass and five feet west of its westerly abutment it had erected and maintained a reflector type of sign reading “ Slow ” but there is ample proof to support the findings by the Court of Claims that during the summer months just prior to the accident “ there were several accidents where east-bound cars were wrecked at the underpass, some of the cars knocking down the ‘ Slow ’ sign;” that about three weeks before the accident ‘‘ an east-bound car ran into the southerly bridge abutment, where the ' Slow ’ sign was located and broke the sign and bent it over in such a position that it did not reflect the lights of approaching cars;” and “ that such sign was not repaired, and remained out of working order until the evening of ” the accident; “ that the broken condition of such sign was known to the State’s highway patrolman; that on the evening of Thursday, October 3, 1935 [two nights before the accident involved in these claims], two cars were wrecked in separate accidents at this underpass, and one of these cars hit and broke the ‘ Slow ’ sign so that the sign was separated from the post and the beads were knocked out of the sign and scattered around upon the shoulder of the road; that the condition of this sign became known to said patrolman on October 4, 1935; that between the evening of October 3, 1935, and the evening of October 5, 1935, [the date of the accident] the' Slow ’ sign near the bridge abutment remained in a broken condition and was not re-erected or restored.”
It is my conclusion that there is sufficient proof in the record from which the fact finders may have determined under conditions which prevailed at the point of the accident, that the two non-reflector signs erected at distances of six hundred and forty-seven feet and four hundred and ninety-eight feet, four inches west of the underpass were not adequate to warn a night driver of the danger lying ahead.
Believing that the State owes to night drivers upon a State highway the same duty which it owes to those who drive by day and having in mind the record proof which bears upon ’the risks which the claimant Earl, an east-bound driver, faced at the site of this accident, I cannot agree with the conclusion reached by my associates that the decision of the Court of Claims is contrary to and against the weight of evidence wherein it finds as a fact that the State and its employees were negligent and that such negligence was the proximate cause of the accident.
*232In Yande Walker action: Judgment reversed on the law and the facts, with costs, and judgment granted in favor of the defendant, dismissing the claim. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made.
In the Scammell action : Same decision and like cause of action as in companion case last above.
In Earl action: Same decision and like cause of action as in companion case last above.