The infant claimant, nearly 13 years of age, testified that on July 23, 1956, a clear dry day, at approximately 3:30 in the afternoon, he was riding a borrowed bicycle in a westerly direction on the south sidewalk parallel to Northern Boulevard. Before reaching the southeast corner of Northern Boulevard and Sussex Road he cycled off the sidewalk, in order to avoid the high curb, onto Sussex Road and continued traveling westerly across the road. In attempting to return to the sidewalk he slowed down and rode to the right of the southwest curb of the intersection, passed between two white posts, two and one-half to three feet high, described as guideposts, travelled a short distance, at which point he dropped approximately three and one-half feet below the grassy area into a drainage culvert. He also stated that he was unable to see the culvert as he travelled on the grassy area and that he was not familiar with the intersection.
Photographs in evidence showed the condition described by the infant claimant.
Infant claimant’s friend testified that he had fallen into the culvert while riding his bicycle a year prior to the accident, but did not report the incident.
An engineer, employed by the State, whose testimony in an examination before trial was read into the record, stated that the culvert was built for the State in 1928; that he had observed a growth of vegetation around the surface of the culvert and that there was a growth of vegetation of medium density at the beginning of the headwall of the culvert, which was four to five inches above it.
Under these circumstances, in my opinion the condition existing at the place of the accident, and which was created by the State, required a barrier affording greater protection than the two lone white posts as described by the witnesses and portrayed in the exhibits.
The test is well stated in Countryman v. State of New York (251 App. Div. 509, 513, affd. 277 N. Y. 586): “ There is no general or infallible rule as to the location or strength of barriers. They are to be placed where the way is perilous or where there are unusual or exceptional conditions, and they must be of a kind and so located as to furnish ‘ protection for travel generally.’ ” (Mason v. Town of Andes, 261 App. Div. *575354, affd. 287 N. Y. 616; Huston v. County of Chenango, 253 App. Div. 56, affd. 278 N. Y. 646.)
In Garrow v. State of New York (268 App. Div. 534, affd. 294 N. Y. 741), aside from affirming the theory of negligence, the court stated (pp. 537-538): “ More care must be exercised toward children than toward persons of mature age. Children of tender years are entitled to care proportioned to their inability to foresee and avoid the perils that they may encounter. The duty to avoid doing them an injury increases with their inability to protect themselves and with their childish indiscretions, instincts and impulses.”
The McCauley case, upon which the majority places great reliance, is not applicable. There, on a stormy Winter night, an automobile traveling on the slippery highway went off the shoulder on its own side of the pavement and then proceeded across to the wrong side of the road onto the shoulder, between guardposts, down an embankment and into a river. The bizarre facts therein have little to do with the present case where a boy, riding a bicycle on the sidewalk and in the process of crossing an intercepting road to return to the sidewalk, went between guardposts and into the culvert. The reference to automobile traffic on Northern Boulevard has no application here.
The majority, in discussing the question of contributory negligence, attempt to rationalize what the claimant could or should have done but such speculation is no predicate for a finding of contributory negligence on the part of the claimant by this court.
The Court of Claims, in arriving at its determination of failure of proof, considered an erroneous rule of conduct. The question of whether the claimant was a licensee or trespasser was not in issue. The applicable rule required the State to use reasonable care and which, if applied, might have resulted in a different verdict. If for no other reason — and there are others — the claimant is entitled to a new trial. The basis for the court’s dismissal of the complaint was error. (Marcario v. City of New York, 278 App. Div. 712.)
The judgment of the Court of Claims should be reversed, on the law and the facts, and a new trial granted.
Gibson, P. J., and Hamm, J., concur with Reynolds, J.; Hbrlihy, J., dissents, and votes for reversal and a new trial, in opinion, in which Aulisi, J., concurs.
Judgment affirmed, without costs.