I agree with the majority that the State was not negligent in regard to the design of the highway at the place where the accident occurred.
I predicate negligence on the part of the State on the following finding of the Court of Claims made at the request of the claimant: “ That the State of New York was negligent in creating and/or permitting (by conjunction of the intersection of the unpaved Interchange grade with the Westerly edge of Route 303 precisely at the apex of the curve, the absence of guide posts at the same point, the absence of lights, flares, or other warnings of the said gap and intersection), a dangerous optical illusion for the South-bound motorist, causing him to be deceived by his senses into concluding that the roadway of Route 303 continued in a straight line as it proceeded downhill, whereas in fact it curved sharply to the East, or left.”
In my opinion the examination of the photographs and the record clearly establishes negligence on the part of the State. *95The removal of the guardrails and the failure to have signs or other warning created a dangerous illusion.
The record sustains the following facts and findings. At the crest of the hill before starting downgrade, the direction in which the decedent was proceeding, there were two signs designating a curve and a large sign advising of “ Danger Construction ”. The decedent starting downgrade, with the headlights of his automobile illuminated, would, because of the degree and sharpness of the curve to the left, be directed at the opening between the guardrails. In a split second decision the decedent could and undoubtedly did make the assumption that the road went between the guardrails, there being no signs, lights, barrier or any other type of warning to advise to the contrary. The sign at the crest of the hill relating to construction would only lead to confusion as the decedent might properly have assumed, when he saw the opening between the guardrails, that this was the road he was to travel. Under the circumstances of this case, there was a positive duty on the part of the State or its contractor to have posted necessary and adequate warning signs. The removal of a portion of the guardrails created a deceptive condition, more like a trap, and the failure to so warn the decedent constituted negligence which was the proximate cause of the accident.
The signs at the crest of the hill were entirely inadequate to warn of the existing dangerous condition. (Petrozak v. State of New York, 189 Misc. 809-813, 815; Wolf v. State of New York, 122 Misc. 381, affd. 210 App. Div. 827; Ross v. State of New York, 265 N. Y. 632.)
The opinion of the Court of Claims, in part, was premised on a lack of adequate warning and this court should not disturb that finding of negligence on the part of the State.
The weight of the probative evidence, as found by the Court of Claims, establishes that the State failed in its duty to give the decedent adequate and timely warning of a dangerous situation which he was approaching and ‘1 where lurked uncommon danger ”. (Canepa v. State of New York, 306 N. Y. 272, 277.) The highway ‘ ‘ was extraordinarily dangerous at the place of the accident”. (Van de Walker v. State of New York, 278 N. Y. 454, 456.) The negligence of the State Avas established, not by inference, but by a preponderance of the evidence.
The majority opinion would seem to impute negligence to the decedent on the basis of excessive speed as a result of markings on some trees struck by the automobile. There were no speed limitation signs as the decedent approached the hill and started down, which concededly gave him the prima facie *96right to travel 50 miles per hour, the lawful rate of speed in this State. The State substantiated this fact by offering evidence that the lawful and safe speed at the place where the automobile left the road was 50 miles per hour. When he mistook the road at this speed, there was obviously little or no opportunity to brake the car and the fact that the automobile after traveling over the dirt fill catapulted through
the air a distance of 10 to 15 feet before striking the trees is no basis for the finding of contributory negligence. As to this facet of the case the weight of evidence amply sustains the finding of the Court of Claims and there is no fair basis inferentially to support a finding of contributory negligence by this court.
This being a death case, the plaintiff is not held to the same degree of proof as in the case of an injured litigant. (Noseworthy v. City of New York, 298 N. Y. 76, 78, 79.)
In my opinion, the finding by the Court of Claims that the State was negligent and that the decedent was free from contributory negligence was amply justified from the record in this case, and I vote to affirm.
Bergan, P. J., Coon, Gibson and Reynolds, JJ., concur in Per Curiam opinion; Hbrlihy, J., dissents in an opinion and votes to affirm.
Judgment reversed on the law and the facts and the claim dismissed, without costs.