McKray

This is an action for damages for personal injuries resulting from a one-car accident. Plaintiff was a passenger in an automobile driven by one Laspada on State Highway 29 about 9:10 a.m., on a clear, dry July day. His car was travelling in the outer (right) lane of the two southbound lanes at a speed of 45-55 miles per hour. He looked across the highway at a pedestrian. His car left the 12-footwide lane, crossed the 10-feet wide shoulder, and straddled a berm 2 to 8 inches high. The car continued, partly on the shoulder and partly on the dirt beyond it, some 75 feet until it struck a concrete abutment. Laspada died in a later and unrelated accident. He and Volkswagen of America, Inc. were named as defendants but were not served. Defendant state and its director of transportation sought and were granted summary judgment. Plaintiff appeals.

The declarations and photographs accompanying them establish that for more than 1,000 feet to the north of the abutment, the road was straight and free of curves, bumps or dips which could in any way obscure vision. Highway 29 had originally been a two-lane road. In 1948, the two southbound lanes were added, and the original road…