Per Curiam.
On March 3, 1954 a Ford automobile driven by Roderick McCauley in an easterly direction on Route 3 crossed over to its left side of the road near the approach to a bridge spanning the Raquette, and passing between a vacant space some 10 feet wide in the protective guardposts on the left side of the road, plunged down a bank and into the river.
The driver McCauley and two of the passengers were drowned; three other passengers were able to reach safety. Death claims have been dismissed by the Court of Claims after a trial on the ground that the sole cause of the accident was the negligence of the driver.
The proof shows that the highway had been plowed on the night of the accident and the plowed area extended onto the shoulder. The paved portion of the road was icy and slippery. It was snowing intermittently and visibility was poor.
As McCauley approached the scene of the accident a snowplow was observed moving toward the highway in a side road on his left. The plow first stopped at the edge of Route 3 and then started in forward motion again. As McCauley saw this motion toward him he turned his car to the right so that its right wheels were on the shoulder of the road near the edge of the plowed area and continued in this position beyond the snowplow. While in this position he was driving 20 to 25 miles an hour, but, by the testimony of a passenger, going “ slower at the old concrete road ” (from which the snowplow was coming).
He then tried to bring the car back on the paved portion of the road; the front wheel came up, but the rear wheel stayed on the shoulder and the driver ‘ ‘ accelerated slightly to try to come on This was about 125 feet from the end of the bridge abutment on his right side. The rear wheel then came up on the pavement, “ the back end shook ” and the car skidded across the road, through the space between the guardposts, over the steep bank beyond the posts, and into the river.
All witnesses who examined the area in which the car was driven partly on the shoulder are in agreement that there was an elevation in the edge of the concrete pavement above the shoulder, and that this elevated area existed at the point where [491]*491McCauley had attempted to get the right wheels of his car back on the pavement.
The witnesses differed as to the height of the raised edge of concrete pavement above the shoulder. Two town highway employees said it was from one to one and one-half inches; a State trooper said it was three to four inches; one witness said it was from three to five inches. One of the town highway employees was a snowplow operator called by the State, who testified it was one to one and a half inches, and who examined the area immediately after the accident by walking with a flashlight; he testified that he noticed a tiremark along the edge of the pavement.
In describing this mark on cross-examination, he said that it was “ on the edge ” and that “ it went for a little ways, and I couldn’t see, tell for sure whether — it must have caught on the edge of the cement and went right back on.” He testified to observing that while the surface of the shoulder was “ snow ” the surface of the pavement was “ ice ’ ’.
The Court of Claims made no finding of fact on the height of the raised edge of concrete above the shoulder because it was of opinion, apparently, that regardless of what the differential in altitude between concrete edge and shoulder was, the State would not be liable under the facts of this case.
The court specifically refused to accept the proposed finding submitted by the State that 1 ‘ there was no more than an inch to an inch and a half difference in elevation between the hard surface of the road — and the shoulder ”. This was marked by the Judge “ refused except as found”. Nowhere in the findings is there any determination of what this elevation was. In the court’s memorandum of decision it is merely noted that “ There is a sharp cleavage in the evidence on this point.”, and that ‘‘ While there is a grave doubt whether the drop-off was five inches or not more than two inches, there was some drop-off from the pavement at points along the four hundred feet immediately west of the westerly end of the bridge.”
The reason why the Judge felt this elevation of concrete pavement above the shoulder was irrelevant here and ‘ ‘ not a proximate cause of the accident ’ ’, was that there was no emergency which would have justified McCauley’s going onto the shoulder; and no reason why he should not have stopped, rather than going back on the pavement, in view of the fact that he was approaching the abutment of the bridge.
The Attorney-General, in support of the judgment, argues, in part, that since the pavement itself widened a little on the bridge the driver should have continued on the shoulder with[492]*492out then trying to get back on the pavement. The State’s brief on this aspect of the case says: “A car only ten or twelve inches off the concrete and on the shoulder would thus have avoided the abutment even if it had not been turned to the left in an effort to regain the pavement.”
It is thus a crucial part of the argument that the McCauley car should not have gone on the shoulder in the first place because there was no emergency. It was, in the words of the State’s brief “ an unnecessary gesture ”. Having gotten there, the argument continues, the car should either have stayed there and stopped; or stayed there and continued onto the bridge.
But it is not negligence to drive on the shoulder of a road to avoid some danger which seems apparent to the driver of a vehicle. The test of what such a danger is, and whether it would amount to an “ emergency ”, is what a reasonably prudent driver would do faced with such a situation. For example, driving onto a shoulder to avoid a truck which “ appeared to her [the driver] to be partly on her side of the center line ” has been held a justified use of a shoulder. (Petrozak v. State of New York, 189 Misc. 809, 811.)
This decision is cited by Davison, Claims Against the State of New York on page 522 as authority for the statement that the State owes users of the highway the duty of maintaining shoulders “in a reasonably safe condition for use by the prudent driver travelling at a reasonable speed in an emergency ’ ’ (§ 50.01; see, also, § 50.02). The principle involved here is quite similar to that considered in Goodwin v. State of New York (274 App. Div. 824, affd. 298 N. Y. 873).
If a driver traveling on a slippery road sees a snowplow, proceeding toward his road from the left, stop and then start again toward him, he is certainly warranted in taking steps to avoid this potential danger. He might not be justified in' a heavy application of brakes on ice, but he would surely be warranted in pulling, in part, off onto the plowed-out shoulder which, as it has been seen, was covered with snow rather than ice. This would help him to avoid the plow had it continued across the road and, at the same time, probably given him better control of the car than on the icy pavement itself.
The fact that we know now, after the event, that the plow did not actually come out as far as the eastbound lane in which McCauley was driving, does not change the situation as he faced it. The driver did not know this and was to be governed by the rule of reasonable precaution in the situation as he saw it.
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Per Curiam.
On March 3, 1954 a Ford automobile driven by Roderick McCauley in an easterly direction on Route 3 crossed over to its left side of the road near the approach to a bridge spanning the Raquette, and passing between a vacant space some 10 feet wide in the protective guardposts on the left side of the road, plunged down a bank and into the river.
The driver McCauley and two of the passengers were drowned; three other passengers were able to reach safety. Death claims have been dismissed by the Court of Claims after a trial on the ground that the sole cause of the accident was the negligence of the driver.
The proof shows that the highway had been plowed on the night of the accident and the plowed area extended onto the shoulder. The paved portion of the road was icy and slippery. It was snowing intermittently and visibility was poor.
As McCauley approached the scene of the accident a snowplow was observed moving toward the highway in a side road on his left. The plow first stopped at the edge of Route 3 and then started in forward motion again. As McCauley saw this motion toward him he turned his car to the right so that its right wheels were on the shoulder of the road near the edge of the plowed area and continued in this position beyond the snowplow. While in this position he was driving 20 to 25 miles an hour, but, by the testimony of a passenger, going “ slower at the old concrete road ” (from which the snowplow was coming).
He then tried to bring the car back on the paved portion of the road; the front wheel came up, but the rear wheel stayed on the shoulder and the driver ‘ ‘ accelerated slightly to try to come on This was about 125 feet from the end of the bridge abutment on his right side. The rear wheel then came up on the pavement, “ the back end shook ” and the car skidded across the road, through the space between the guardposts, over the steep bank beyond the posts, and into the river.
All witnesses who examined the area in which the car was driven partly on the shoulder are in agreement that there was an elevation in the edge of the concrete pavement above the shoulder, and that this elevated area existed at the point where [491]*491McCauley had attempted to get the right wheels of his car back on the pavement.
The witnesses differed as to the height of the raised edge of concrete pavement above the shoulder. Two town highway employees said it was from one to one and one-half inches; a State trooper said it was three to four inches; one witness said it was from three to five inches. One of the town highway employees was a snowplow operator called by the State, who testified it was one to one and a half inches, and who examined the area immediately after the accident by walking with a flashlight; he testified that he noticed a tiremark along the edge of the pavement.
In describing this mark on cross-examination, he said that it was “ on the edge ” and that “ it went for a little ways, and I couldn’t see, tell for sure whether — it must have caught on the edge of the cement and went right back on.” He testified to observing that while the surface of the shoulder was “ snow ” the surface of the pavement was “ ice ’ ’.
The Court of Claims made no finding of fact on the height of the raised edge of concrete above the shoulder because it was of opinion, apparently, that regardless of what the differential in altitude between concrete edge and shoulder was, the State would not be liable under the facts of this case.
The court specifically refused to accept the proposed finding submitted by the State that 1 ‘ there was no more than an inch to an inch and a half difference in elevation between the hard surface of the road — and the shoulder ”. This was marked by the Judge “ refused except as found”. Nowhere in the findings is there any determination of what this elevation was. In the court’s memorandum of decision it is merely noted that “ There is a sharp cleavage in the evidence on this point.”, and that ‘‘ While there is a grave doubt whether the drop-off was five inches or not more than two inches, there was some drop-off from the pavement at points along the four hundred feet immediately west of the westerly end of the bridge.”
The reason why the Judge felt this elevation of concrete pavement above the shoulder was irrelevant here and ‘ ‘ not a proximate cause of the accident ’ ’, was that there was no emergency which would have justified McCauley’s going onto the shoulder; and no reason why he should not have stopped, rather than going back on the pavement, in view of the fact that he was approaching the abutment of the bridge.
The Attorney-General, in support of the judgment, argues, in part, that since the pavement itself widened a little on the bridge the driver should have continued on the shoulder with[492]*492out then trying to get back on the pavement. The State’s brief on this aspect of the case says: “A car only ten or twelve inches off the concrete and on the shoulder would thus have avoided the abutment even if it had not been turned to the left in an effort to regain the pavement.”
It is thus a crucial part of the argument that the McCauley car should not have gone on the shoulder in the first place because there was no emergency. It was, in the words of the State’s brief “ an unnecessary gesture ”. Having gotten there, the argument continues, the car should either have stayed there and stopped; or stayed there and continued onto the bridge.
But it is not negligence to drive on the shoulder of a road to avoid some danger which seems apparent to the driver of a vehicle. The test of what such a danger is, and whether it would amount to an “ emergency ”, is what a reasonably prudent driver would do faced with such a situation. For example, driving onto a shoulder to avoid a truck which “ appeared to her [the driver] to be partly on her side of the center line ” has been held a justified use of a shoulder. (Petrozak v. State of New York, 189 Misc. 809, 811.)
This decision is cited by Davison, Claims Against the State of New York on page 522 as authority for the statement that the State owes users of the highway the duty of maintaining shoulders “in a reasonably safe condition for use by the prudent driver travelling at a reasonable speed in an emergency ’ ’ (§ 50.01; see, also, § 50.02). The principle involved here is quite similar to that considered in Goodwin v. State of New York (274 App. Div. 824, affd. 298 N. Y. 873).
If a driver traveling on a slippery road sees a snowplow, proceeding toward his road from the left, stop and then start again toward him, he is certainly warranted in taking steps to avoid this potential danger. He might not be justified in' a heavy application of brakes on ice, but he would surely be warranted in pulling, in part, off onto the plowed-out shoulder which, as it has been seen, was covered with snow rather than ice. This would help him to avoid the plow had it continued across the road and, at the same time, probably given him better control of the car than on the icy pavement itself.
The fact that we know now, after the event, that the plow did not actually come out as far as the eastbound lane in which McCauley was driving, does not change the situation as he faced it. The driver did not know this and was to be governed by the rule of reasonable precaution in the situation as he saw it.
That part of the decision of the Court of Claims which turns upon a holding that there was no justification for the driver’s [493]*493going on the shoulder seems to us unwarranted; hut whether in the light of after events it can be seen that it was not necessary to go there or not, it is clearly not negligent for the driver to have gone there; and it makes a hard argument to say that in a situation such as confronted McCauley, a reasonably careful driver would not have taken to the shoulder at the point he did.
Nor was it negligent, in our view, for him to try to get back on the road after he had passed the snowplow. Although the Court of Claims was of opinion that there was “ no reason why he should not have stopped ” it is open at least to serious question whether a driver should have stopped entirely under such surface and road conditions as existed and later, by a fresh start, tried to have gotten back on the paved portion of the road; or whether, while he had traction and momentum, to have attempted to get back on without stopping.
Had he continued on straight he would have been perilously close to the bridge abutment, and, on the bridge might have struck a raised concrete curb between the bridge abutment and the pavement. A driver would not be negligent because he did not follow that course. We are of opinion on reviewing this aspect of the case that McCauley drove with reasonable care and was not negligent.
The Court of Claims did not pass on the sufficiency or adequacy of the protective guards on the left side of the road above the river bank; nor on whether the State’s maintenance of them was negligent at the point through which the car passed when it went into the river, apparently because in the opinion of the court the negligence of the driver was the “ sole ” cause of the accident. This seems to amount to a holding that if the driver was negligent even the passengers could not recover,' even if the State was negligent- in maintaining the guards whether or not such guards played some part in the ultimate occurrence of the disaster. This sole negligence of the driver, as we understand the court’s reasoning is, as it has been seen, that he went onto the shoulder in the first place and did not stay there when he got there. The court said in its memorandum of decision that it was of opinion that there was no negligence on the part of the State 1 ‘ in connection with the barriers or posts ’ ’ on the north side 1 ‘ which proximately caused or contributed as a proximate cause to the accident ’ ’ and for that reason the court discussed it “ no further ”.
Even if there were no negligence on the part of the State in the maintenance of the shoulder, but the car skidded through no negligence of the driver McCauley, his estate could recover [494]*494if the guardrails were negligently maintained and this was in' part a cause of the drowning; and the estates of the passengers could recover in such a situation even though McCauley had been in fact negligent. It is not possible on this record, therefore, to disregard the danger created by the guardrails; and we are of opinion they were negligently maintained and that they were a part of the cause of the disaster.
Connecting the west abutment of the bridge on the north side of the road were two lines of cable running to two metal posts made of railroad rails, and anchored in the ground at the end of the second one. This cable guardrail ran about 20 feet in a westerly direction from the end of the bridge abutment, but also somewhat northerly a distance of 10.3 feet beyond the end of the westerly anchor of the cable rail was a wooden post; and 10.3 feet beyond that was another wooden post.
The first wooden post was north of the cable anchor rather than directly west of it; and the second wooden post was north by west of the first one.
The line of guardposts and cable extending from the west end of the bridge abutment on the north side, in total effect therefore, describes something of a curve to the north; and an examination of the maps in evidence and of the photographs which describe them show why they follow such a course.
A dirt road (not the one from which the snowplow came) joins the State highway from the north close to the west end of the bridge, but a steep bank down to the river lies in the angle of this meeting place. This steep bank down to the river exists throughout all the area in which either the cable guardrail or the wooden posts are located. It is abundantly established, and not in dispute, that both the cable guard and the wooden posts are on the State highway right of way and that their location and maintenance are the responsibility of the State.
Although the State might make provision for open access to the dirt road, it would not because of this be relieved of maintaining suitable protection to the users of the State highway against the danger from the steep bank on the State’s right of way, and from the river below.
In skidding from the south to the north side of the road the McCauley car passed in the 10.3 foot space between the end of the cable guardrail and the first wooden post, and then on down the embankment into the river. The location of the first wooden post did not conform with the contract plans of the State which were received in evidence and which indicated that the first wooden post beyond the end of the guardrail was to be located [495]*4956.3 feet from the end of the guardrail rather than its actual location of 10.3 feet.
With such a location the space would not have been wide enough for the McCauley car or a car of normal width to pass through. Although these plans are not conclusive on the standard of protection required at this point, they are some evidence of it. There is proof for claimants that the posts were not located in accordance with reasonable engineering practice and there is no proof by the State that the guardposts as located did conform with reasonable standards.
Guardrails are not required because it is to be expected that ordinarily traffic will run off the edge of the road into places of great peril beyond. They are placed because of the possibility that in emergencies, and in spite of reasonable care, drivers will sometimes go off the paved portions of highways and beyond the shoulder of the road.
When the area beyond the shoulder is unusually dangerous, as where there is a high enbankment, a deep and rapid river, or a sharp mountainside drop, the public authority which maintains the road is required to establish' and maintain appropriate safeguards against the hazard. (Countryman v. State of New York, 251 App. Div. 509, affd. 277 N. Y. 586; Garrow v. State of New York, 268 App. Div. 534, affd. 294 N. Y. 741; Mason v. Town of Andes, 261 App. Div. 354, affd. 287 N. Y. 616; Huston v. County of Chenango, 253 App. Div. 56, affd. 278 N. Y. 646.)
Indeed, the State here recognized the need for protection at this river bank by specifying the guards in the road plans and by erecting them. The recognized danger was not adequately provided against in the actual installation of guardposts. It is argued by the State that in any event the guards were for the protection only of traffic going in a westerly direction on the north side of the road; but such a protection against an obviously dangerous bank and river was not the special property of traffic moving in any direction. It was for the protection of any traffic on the road which through nonnegligent mishap needed protection against the high hazard of the river bank on the road’s edge.
Common experience with highway casualty shows that vehicles in difficulty do not follow neat patterns by adhering to one side of the road. Guardrails are to protect traffic from either side which needs protection from the special hazards to which they relate.
We are of opinion, therefore, that the State was negligent in the maintenance of the road shoulder on the south side of the road and in the maintenance of the guardposts on the north [496]*496side and that these conditions in combination were effective causes of the accident; and that the driver McCauley and the passengers who lost their lives were free from negligence. Even if the finding of negligence in the south shoulder be eliminated, we are of opinion the negligence in maintenance of the north side guardrail played a sufficient role in the casualty to establish liability of the State, because in any event the skidding of the car was not due to the driver’s negligence.
At least the two passengers who were drowned remained for some time in the icy water of the river holding onto the car and seeking rescue or opportunity to get to the shore and the terror and pain of this experience, as well as that of the driver McCauley who also attempted to save himself, warrant a finding of damage for conscious pain and suffering.
In the case arising from the death of Roderick McCauley, who was 58 years old, married and having two minor children as well as others of age, and who was a dealer in sand and gravel and building supplies, damages are found in the sum of $35,000 for wrongful death; plus $5,000 for conscious pain and suffering; plus special damages of $950 for funeral expenses and $776 property damage to his car, a total of $41,726. In the case of Wanda Deshaw, aged 14%, a high school girl, damages are found for $20,000 for wrongful death; plus $1,458 funeral expenses; plus $5,000 for conscious pain and suffering; and in the case of Joseph Salamy, aged 17, who was working and helping support his family, damages for wrongful death are fixed at $25,000; plus $1,035 funeral expenses; plus $5,000 for conscious pain and suffering. Credit against the Deshaw and Salamy awards is to be given for the $10,000 and $15,000 settlements which have been made respectively by the insurance carrier on the McCauley car.
The judgments should be reversed on the law and the facts and judgments directed for the claimants in accordance with this opinion, with costs to appellants.
Settle order.