(dissenting). We are unable to concur with the majority of the court, our opinion being that the judgments of the court below dismissing these claims should be affirmed.
The decision that there was no negligence on the part of the State which contributed to this unfortunate accident, and that the sole proximate cause was the negligence of the driver of the vehicle, Roderick McCauley, is amply supported by the evidence, and is sound.
*497This accident occurred on New York State Highway No. 3 near the Raquette River Bridge in the Town of Piercefield, St. Lawrence County. Route 3 is a concrete highway 24 feet wide consisting of two 12-foot lanes, widening to 28 feet at the bridge approach. On March 3, 1954 at about 11:00 p.m., McCauley, age 58, was driving his 1950 Ford sedan in an easterly direction on said highway returning home from a high school basketball game. He was accompanied by his son Francis, 19; Wanda DeShaw, 14; Joseph Salamy, 18; Colette Des Ormeaux and Almonzo Hutchins, high school students. It was a blustery wintry night. The snow on the road and on the shoulders had been plowed to a point approximately three feet from the edge of the paved portion of the highway. A light snow was falling and the visibility poor, due to a strong, gusty wind which at times created snow squalls. That the highway surface was slippery is undisputed. Trouble with the icy road conditions on this same highway had been encountered earlier in the drive by McCauley, who had ‘ ‘ gone off the road ’ ’, as witness Father Giroux put it, at Sevey’s Corners about 12 miles back.
As McCauley drove his vehicle around a slight curve about 700 feet west of the bridge over the Raquette River, a snowplow, approaching the highway from the north at an intersection west of the bridge, came into view. McCauley’s speed on the curve of about 30 to 35 miles per hour was accelerated somewhat coming toward the straight portion of the road. This speed could be reasonably found to be much too fast under the road and weather conditions. Claimants contend that when the lights of the snowplow came into view, McCauley “ eased up ” on the accelerator, touched his brakes lightly and gradually veered off to the right onto the shoulder area. The snowplow was approaching Highway Route 3 at the intersection of the “ old concrete highway ” which is 450 feet west of the bridge. Therefore after passing the snowplow McCauley was some 425 to 450 feet from the bridge. There were no cars or traffic ahead of him, or behind him. He proceeded at least 300 feet, the length of a football field, at a speed of about 25 miles per hour (there is no estimate of this speed except by the son, an interested witness) and at a point about 150 feet from the bridge, this same witness claims that his father attempted to ease the ear back onto the paved portion of the highway slightly accelerating his speed and went into a skid. No attempt was made at any time over this 300 feet to reduce to a slow speed or stop. There is proof that the snowplow never entered the highway. Under these facts the claimants would have the trier of the facts find *498first, that an emergency existed and second, prudent driving on the part of McCauley. From this distance of 150 feet the claimants ’ car went in an almost straight, undeviating line northeasterly across the highway, across the north shoulder, grazed a guardpost and then continued on into the river.
One of the claims of negligence on the part of the State was that the pavement was somewhat higher than the shoulder on the southerly side of the highway west of the bridge. Some of the testimony of this deviation is unsatisfactory because of different conditions prevailing and remoteness. It is difficult to tell from the evidence whether at the exact time McCauley’s car was on the south shoulder there was any deviation due to the packed ice and snow. In fact, McCauley’s son the passenger, testified that he could not tell whether they were on the paved portion of the highway or on the shoulder as they traversed most of the distance between the intersection at the “ old concrete road ” and the bridge. No finding was made by the court as to the amount of deviation, because he held it not to be a proximate cause of the accident. The most credible evidence was supplied by two of the three troopers who were there immediately after the accident, and their testimony was that the drop was from one to one and one-half inches. They were the investigating officers. A third trooper who had been detailed to traffic duty at the scene testified it was from two to four inches although on cross-examination he admitted that he had never communicated this appraisal at any time to the investigating officers with him.
The State’s duty generally in regard to shoulder maintenance, as quoted in the majority opinion, is to keep the shoulders ‘ ‘ in a reasonably safe condition for use by the prudent driver travelling at a reasonable speed in an emergency” and, of course, in an emergency to which he himself did not contribute.
As was stated in Thompson v. State of New York (154 Misc. 707, 710 [Ct. of Claims, 1935], mod. 247 App. Div. 858, affd. 247 App. Div. 858): “In these days of fast automobile traffic, a careful driver, through no fault of his own, is sometimes forced onto the shoulder of the road by a careless and negligent driver who crowds him off from the pavement, or a driver by accident in the night time might inadvertently drive onto the shoulder. It would seem, therefore, that the shoulder of the road, while it is not made to travel on, should be in such condition that it could be resorted to in an emergency without danger to life and limb. Of course, a driver who finds himself suddenly compelled to go onto the shoulder, or who finds that he has passed onto the shoulder inadvertently, must immediately bring his car *499under control and move with such care and caution as the situation demands.”
Suffice it to say that the foregoing facts do not require that the trier of the facts find negligent maintenance of the shoulder under the circumstances, or if he did that it was a proximate cause of the accident (cf. Edwards v. State of New York, 5 A D 2d 1033).
Appellants additionally claim that the barriers on the north side of the highway, northwest of the bridge and at the entrance and along the easterly side of a private road to the Paul Smith electric plant were insufficient and negligently built and maintained. It was between these wooden posts that the car went in its course to the river. Highway Route 3 was straight for at least 700 feet west of the bridge. This accident did not occur on a curve or a grade. The Attorney-General argues and the court has found that the behavior of the McCauley car was not reasonably foreseeable. On this straight stretch of highway, crashing through barriers on the opposite side of the highway and partly along an intersecting road is certainly a remote possibility that those responsible for the design and maintenance of highways could not have been expected to anticipate. There were strong cabled steel barriers extending 20 feet from the bridge abutment. These wooden posts were obviously there as a warning to a person entering the Paul Smith Road. If these wooden posts were close together and the vehicle struck two of them there is no assurance that it would have prevented this car from continuing into the river. No-apparent attempt was made to change the course of the vehicle, or to stop it, over this substantial distance after the alleged skid on the shoulder. It continued on in an almost straight line into the river. These physical facts suggest speed not continuous skidding. The Attorney-General at a loss to understand the behavior of the car, opines with some merit because of the path taken by the car, that the driver must have mistaken the northerly bridge abutment for the southerly one, and thought he Avas on the highway.
There is no general or infallible rule as to the location or strength of barriers. There is no hard and fast rule as to the kind and character of a guardrail or barrier to be erected so that the highway may be deemed reasonably safe for the ordinary needs of travel.
As this court said in Fitzgerald v. State of New York (284 App. Div. 790, 791, motion for leave to appeal denied 308 N. Y. 1053): “ The State, of course, must recognize the occurrence of emergencies on its roads but its duty to anticipate a particular *500result of an emergency does not rise higher than the level of reasonable foresight.”
To impose upon the State the burden of constructing substantial barriers at every point or of paying damages when unusual accidents occur would be to make the State an insurer against accidental injuries or death. In these days of very substantial traffic on our highways such a burden would be too much for the People of the State of New York to bear (cf. Roberts v. Town of Eaton, 238 N. Y. 420). In Jacobs v. State of New York (198 Misc. 406, 408) it was stated: “ There was no reason to anticipate that a car would leave the highway at the point where the Jacobs car did so. Of course, it might and did under ice conditions, but a similar mishap might have occurred at any point along the highway under such conditions. If the State must guard against such possibilities, it must line every highway with guardrails.” In sum, there was ample, compelling evidence in the record to support the trier of the facts in his determination that the negligence of the State, if any, in the construction and maintenance of these barriers was not a contributing proximate cause of the accident.
In our view the decision that the negligence of the driver McCauley, upon the facts of this case, was the sole proximate cause of this tragic disaster is eminently sound. To hold the State of New York negligent and require it to respond in damages, either to the passengers or, a fortiori, the driver under these facts and circumstances is intolerable.
In Tyrell v. State of New York (6 A D 2d 958, 959) this court said: “ Certain it is, that, when there is a decision for the defendant by the trier of facts in an action of this sort, the court is not justified in setting it aside as against the weight of evidence unless it can be plainly seen that the preponderance in favor of the plaintiff is so great that the trier of facts could not have reached the conclusion upon any fair interpretation of the evidence (Jarchover v. Dry Dock, East Broadway & Battery R. R. Co., 54 App. Div. 238; Mieuli v. New York & Queens County Ry. Co., 136 App. Div. 373; Meyers v. Hines, 199 App. Div. 594; Voyes v. Kane, 240 App. Div. 710; Collins v. City of New York, 263 App. Div. 893).”
The judgments should be affirmed.