75 N.Y.S. 723 | N.Y. App. Div. | 1902
The plaintiff was nonsuited, and upon this appeal is entitled to the most favorable construction which the jury might have placed upon the evidence, but under this favorable rule, we are of opinion that the plaintiff has failed to establish facts entitling him to go to the jury. The action is to recover damages for the loss of service of the plaintiff’s wife, who was injured in an accident alleged to have been due to the negligence of the defendant. Assuming that the pleadings and the evidence show that there was a large rock, approximately two feet square, within the highway limits of the town of Goshen, we are unable to discover from the evidence either that the rock was the proximate cause of the accident, or that it was negli
It is not negligence for a township or an individual to fail to provide against the possibility of accidents; the duty is discharged when there has been an exercise of reasonable care to provide against the happening of accidents which might reasonably be expected to result. Where a rock has been placed at a road corner in a rural community for the obvious purpose of preventing collisions with the fence, which might be equally dangerous, it would be unreasonable to hold that an accident due to the presence of this rock, in connection with the frightening of the horse by the barking of a dog, constituted negligence on the part of the town. The rock was not the proximate cause of the accident; it would not have resulted in injury to the plaintiff except for the fact that his horse was frightened and crowded the vehicle out of the beaten track and against this rock, just as he might have run the wagon against the fence corner if the rock had not been there.
In the case of Coggswell v. Inhabitants of Lexington (4 Cush. 307, cited in Jewhurst v. City of Syracuse, 108 N. Y. 303) the line of the highway was not indicated by any visible objects ; the post which caused the accident and which was something over two feet in height was near the true line of the highway and within the limits and general course and direction of the travel and where travelers were accustomed to pass. There was nothing which reason
The judgment appealed from should be affirmed.
Baetlett, J., concurred in the result.
Judgment unanimously affirmed, with costs.