11 N.Y.S. 355 | N.Y. Sup. Ct. | 1890
On the 14th day of March, 1887, the plaintiff resided in Tuscarora, in the town of Lindley, Steuben county. On that day, with two teams loaded with hay, the plaintiff driving one and his brother following, he was proceeding to Painted Post for the purpose of marketing his loads. The plaintiff’s brother, Charles Fay, drove the last team. At that time, and before and afterwards, Marcus Stowell was supervisor of the town of Lindley, John Starner was highway commissioner, and R. B. Hill patlnnaster. A portion of the highway on which the plaintiff and his brother with their teams had need to travel to reach their destination was built by excavations in the rocks on the south side of Clendenning creek, which runs through a narrow rocky defile in the mountains. The road-bed was built on the south side of the creek extending 269 yards, was from 8 to 10 feet in width, and 4 or 5 feet above the water in the creek. At that time the west edge of the road-bed was protected on the creek side by logs and fenders for a distance of 147 rods. Then, for a distance of 87 yards, there were no fenders. After that there were 25 yards of fenders, and then for 10 yards there were no fenders. The road was originally protected by fenders its entire length. In January, 1886, a flood in the creek took away some of the fenders. In the winter season, ice and snow ordinarily accumulated in the road-bed, and it is liable to be icy, which was the case in the winter of 1886 and 1887. The rock on the side opposite the creek was shaly and high, and with a crow-bar could be easily broken. At the time in question, the ditch on the upper side of the:road was filled with rubbish, and there was something of a slope in the direction of the creek from the side next the rocks. The road at the point in question was known as “ The Narrows. ” The road had been frozen and icy most of the time during the winter, but shortly before the day in question a thaw occurred, and, the night before, the waters produced by the flood had frozen so that the road-bed was slippery and dangerous. The evidence tended to show that, at the point where the plaintiff entered the highway in the Narrows, there was nothing to indicate the dangerous condition of the road, and that, when a
To show negligence on the part of the commissioner, the plaintiff’s contention on the trial was that the road should have been made level between the mountain and the creek; that the ditch on the mountain side should have been kept open; that fenders should have been constructed and kept up on the creek side; also that the commissioner had full knowledge of the defects which he obtained in his inspection in the summer of 1886, and in the fall of the same year; that he entirely neglected his duty in the above particulars; and that he had funds to make the repairs. The plaintiff also insisted that he had a right to travel upon the Harrows, and that, until it was too late to escape, he had no notice of danger. The defendant denied all the plaintiff’s claims, and insisted that he was guilty of negligence; that the danger was the result of a sudden thaw; and that, with reasonable prudence on his part, no accident would have happened. The commissioner also claimed that the Harrows and their dangers were apparent, and that, under the circumstances, .the plaintiff should not have ventured to travel the highway at that time. There was no controversy as to the place in question being a public highway. The jury found the controverted questions in favor of the plaintiff. The evidence warranted such finding. Towns were not liable for accidents on the highway until the passage of chapter 700 of the Laws of 1881, by which it was enacted .that towns should be liable for all damages to person or property by reason of defective highways or bridges in such town, in cases in which the commissioner of highways of said towns is now by law liable0 therefor, instead of such commissioner of highways. This action was brought against the town, and the plaintiff’s right to recover depends upon the liability of the commissioner, except for the above act. The general rule is that dangerous places in a highway should be protected by fenders, guards, or barriers. Maxim v. Town of Champion, 4 N. Y. Supp. 515; Ivory v. Town of Deer Park, 22 N. E. Rep. 1080; Jewhurst v. City of Syracuse, 108 N. Y. 303, 15 N. E. Rep. 409; Kennedy v. Mayor, 73 N. Y. 365; Far-