Flansburg v. . Town of Elbridge

Collin, J. Under the statutes the defendant is liable to the plaintiff provided his damages came by reason of *428 a defect in the highway existing because of the neglect of its commissioners of highways. (Laws of 1881, chap. 700; Laws of 1890, chap. 568, sections 16, 17; Laws of 1909, chap. 30, sections 43, 74, 75.) The commissioners were under the statutory duty to care for and cause to be kept in repair the highways and bridges of the town (Laws of 1890, chap. 568, section 4), and the common law of this state gives a right of action against commissioners of highways, who act contrary to or omit to act in accordance with their duty to a person injured thereby, and this right of action it is which the statute made maintainable against the town. (Bryant v. Town of Randolph, 133 N. Y. 70; Lane v. Town of Hancock, 142 N. Y. 510.) In this case a question is: Does the evidence show or tend to show that an omission of the commissioners, inconsistent with and contrary to ordinary and reasonable foresight, apprehension and diligence, caused the injuries of the plaintiff ? If it does not, the exception of the defendant to the denial of its motion for the nonsuit was well taken. The court charged that the plaintiff could not recover unless his horse went off the culvert at the north end of it. The location of the horse, wagon and the plaintiff and the physical conditions following the accident forbid the finding or the inference that the horse passed upon the culvert from ]bhe part of the highway contiguous to the culvert and traveled and held out to the public for use. The. plaintiff lay twenty feet from the north shoulder and more than twenty-six feet from the center of the roadway, and six feet east of the east edge of the culvert extended northerly. The horse and wagon were in line easterly from the north and south center line of the culvert extended, and practically parallel with the culvert and roadway. The horse stumbled while walking against or upon the north guard wall as it remained. Upon the roadway south of it there was nothing to cause it to stumble. From these facts there cannot legitimately *429 and reasonably be drawn the inference that the horse passed upon the culvert from, the roadway, the north shoulder of which was a considerable distance from the interior line of the guard wall, and then turned at a sharp angle upon this wall. These facts compel the clear and certain inferences that the horse strayed from the roadway upon the part north of it, at some point east of the culvert, and proceeding upon the part not prepared or intended for travel, passed from it upon that part of the culvert occupied originally by the wall, and, reaching the part of the wall still standing, stumbled, lost its balance and fell broadside, overturning the wagon with such force and velocity that the plaintiff was flung from it north to the ditch. The commissioners of highways were not negligent in omitting to maintain a guard rail or fence upon the north boundary of the roadway. It is a matter of common intelligence, as well as of law, that a reasonably safe condition of a highway for the travel to which it is subject is ail that is practicable and that adjoining roadways fitted and intended for use are spaces in the highways unsuitable and dangerous for travel. Highway authorities are not under the duty of obstructing travelers from straying into those spaces. They are bound to maintain guard rails or barriers only to protect those traveling within the space prepared and offered for that purpose against dangers in such close proximity thereto as to make traveling on it perilous or where there are other unusual or exceptional conditions. If the horse of the plaintiff had passed a few feet farther north and fallen down the bank of the creek, the defendant would not be liable because it was proceeding upon a part of the highway which had not been prepared for public travel and in so doing fell. The actual occurrence cannot be differentiated from the assumed. If there had been a guard rail along the inside of the wall, as it remained, to the east edge of the culvert, the accident *430 might have happened as it did. The town is not responsible for the injuries sustained by the plaintiff consequent upon his straying from the adequate and suitable roadway prepared for travelers. To hold that the defendant may be made liable for accidents as independent of negligence on the'part of the commissioners and as unlikely and unapprehended as was this would charge them with an enlarged, unjust and harsh responsibility and risk. (King v. Village of Fort Ann, 180 N. Y. 496; Glasier v. Town of Hebron, 131 N. Y. 447; Hubbell v. City of Yonkers, 104 N. Y. 434; Marshall v. Ipswich, 110 Mass. 522; Adams v. Inhabitants of Natick, 95 Mass. 429; Dougherty v. Village of Horseheads, 159 N. Y. 154; Lane v. Town of Hancock, 142 N. Y. 510.) Errors prejudicial to defendant and duly excepted to were made in the admission of certain testimony in the plaintiff’s behalf under due objection by the defendant. A part of such testimony was that the witness giving it told the town clerk of the defendant about four years before the accident that the condition of the road east of the. culvert was dangerous after the willow trees upon the north of the roadway with low hanging branches extending to it had been cut and there ought to be something there to protect the road. In admitting it the court said: “I will receive it simply for the purpose of showing notice.” As already stated the .statute placed upon the commissioners of highways the care and superintendence of" the highways of the town and made it their duty to properly maintain them. The town clerk had no control of or duty in regerd to them, nor was he in any sense the agent or representative of the commissioners. His knowledge was not their knowledge and the notice to him was not notice to them. The evidence was, therefore, incompetent and irrelevant. {Touhey'Y. City of Rochester, 64 App. Div. 56.) A witness for the plaintiff testified, under due objection and exception, that in December, 1907, another person and himself were driving a team, hitched *431 to a sleigh loaded with straw, over this road which was covered with ice and very slippery and when the front end of the sleigh had reached a point forty-two feet east of the culvert the sleigh tipped over to the north. This occurrence was under conditions wholly dissimilar to those attending the injuries to the plaintiff. Proving it did not tend to prove that the condition of the place of the accident to plaintiff made it dangerous at that time or ever before. The testimony did not impart to the jury any truth which justly or with fairness to the defendant should have entered into their deliberations and its admission was error. (Brady v. Manh. Ry. Co., 127 N. Y. 46; Harrison v. N. Y. C. & H. R. R. R. Co., 195 N. Y. 86.) The judgment should be reversed and a new trial granted, with costs to abide the event. Cullen, Oh. J., Gray, Werner, Willard Bartlett, Hiscock and Chase, JJ., concur. Judgment reversed, etc.