*1 CASES IN THE COURT OF APPEALS. against Oswego, Sterling Ireland Plank Road Co. of of There was regularity up appointment trustees.. claim the the no was defective in report least no was made its recitals respect, objection were not full and complete. statute,

The the the trustees shall requirement month, recorded cause their to be one is within appointment S., 12, R. entire failure to An directory. (2 simply 61.) § not affect record would sale made validity them of the debtor’s property.

The court must be affirmed. supreme Mitchell, J., All the who did not hear judges, except decision, took were in argument, part of affirmance. favor

Judgment accordingly. The Company. Plank Road acquired, Although company pursuant plank (Laws road has the statute 223, upon highway, ofim,p. 26), the to construct its road § public may lawfully company thereon continue travel while the is build- ing plank road. public, during rights towards the and duties the construc- highway, road on the similar to tion of the site those of repairing highways. or overseers commissioners when bound, engaged constructing plank road, company is exer- diligence ordinary care and render the cise reasonable travel safe; if, by negligence former convenient unsafe, exercising and a company, road rendered traveler damage, responsible. care sustains for the to recover The action brought damages negli- constructing gence it with manner that horses driving upon plaintiff, thrown The trial out took injured. wagon, *2 527 ALBANY, MARCH, 1856. Sterling Road Plank Co. Oswego, Hannibal and Ireland at the and Oswego Mr. Justice Pratt jury, before place circuit, It 1852. appeared county February, under road defendant was incorporated plank company, act, had acquired and duly general from the city Oswego use the highway leading road, and of its for the construction the town Sterling In thereon. had located grading plank had, the bounds of within the defendant make a new so as to the earth former excavated highway, than the former traveled track lower highway. track, towards Sterling, new This Oswego running occurred, the accident near the where diverged, place former from the traveled highway. pathway were a level at where tracks two place and each was of width at sufficient that place separated, to admit with a but the old traveling carriage;' path- track, became than the new gradually higher way narrower it came to a at until where grew point, place two feet was elevated from to three above the new track constructed defendant. was near this point was a that the was There between plaintiff injured. place, tracks where the where the acci- diverged point occurred, at which the descent from the dent old to than the new was safer where the old one ended or where was Planks had not been injured. yet plaintiff the new track. The lived in laid upon plaintiff Sterling, at load been with a While Oswego hay. he was his thrown from returning, evening, wagon in his so as him to disable for life. He was injured spine alone; and- evidence as to the manner of the traveling ain accident consisted description principally posi- found, he and the horses were tion which wagon made the latter. The evidence tended to the tracks on one side of his hay show sitting team, rack, took the old track and that he driving new, and from the proceeded where it separated point IN OASES THE COURT OF APPEALS. against Oswego, Plank Eoad Co. ended, it to near the where it along point thrown from means of the descent from the wagon by new, old track to the team was from the descending io former the latter. nonsuit,

The defendant’s counsel moved for a insisting that the defendant entitled to the exclusive possession the course constructing *3 road, there; and that the plaintiff wrongfully so, fault; if but that this were not the defendant not had fulfilled that its one suitable duty by constructing track, it, if and travelers were off from the injured by driving and, defendant was not that it was responsible; finally, on the incumbent to show that he had used due plaintiff which, claimed, care in as was he had failed to driving, motion, do. The denied the and the defendant’s justice counsel excepted. of

At the close the the evidence the justice charged that defendant to had the for occupy and down its but grading laying purpose planks, law did not an entire contemplate suspension - travel; that defendant was bound to exercise rea work, care in so as to sonable leave the road passable travelers; for and that safe of the defendant liability like this was cases similar to that of town commissioners and overseers that making repairs upon highways; had if the constructed a suitable pathway, turned off travelers for harder purpose getting track, risk; it was at their that own the defendant wrould in case it be liable left the old road a condition only mislead care; calculated to to that make persons liable it must that it had left the road appear in such situation that travelers in the would not be night condition, notice its to would be led to likely keep the old until should off the He embankment. go further instructed the allusion to some jury, apparently counsel, which been advanced argument by 1856, ALBAHY, MARCH, Sterling Plank Road Co. safe it would left the road had made and the teams made account of change liable oh be not travelers, separated, paths point as into old it to though causing appear driving so that was the traveled subsequent proper path, thus were misled. and the travelers to; added that it had far was excepted judge it to his horses would leave driver been suggested dark; old and he observed that the road out pick ones; the road than were more horses likely young keep had been altered the horses would be that where the road road; “It the old added: take you likely it would let the horses take whether to say proper To own course.” this defendant’s counsel their excepted. was then affirmative requested viz: That several the defendant propositions, (1.) to the exclusive entitled had been possession *4 nonsuit; motion for a That the claimed plain (2.) was in fault in in tiff over the road traveling night construction; it was in the course That the (3.) was guilty negligence riding plaintiff position which he did That had defendant wagon; (4.) an to' obstruction travelers keep put up that the the old been defendant taking (it having argued a should have fence to teams from the old put up keep if it track was That if the find should dangerous); (5.) that one suitable patnway provided liable; was not That if the went plaintiff (6.) upon convenience, old for own or horses took it by instinct, liable; the defendant was not That the (7.) plain tiff was bound under the use circumstances to extraordinary In care. last stated respect proposition, use care. bound to reasonable As to plaintiff sixth he had referred what already proposition, and declined to that further as to charged, ; charge position the other and he declined to as requested by propo 5^0 IN CASES THE COURT OF APPEALS. against Plank Boad Co. The defendant’s sitions. counsel in each instance excepted to the refusal to desired. found a ver $1-500, dict for the and the entered thereon affirmed at a term in the 5th district. general The defendant appealed.

J. H. for the Reynolds, appellant. Tremaine,

L. for the respondent. J. Plank road authorized, C. companies Demo, the statute for their to use providing incorporation, of the state for the location and highways construc- roads, of their tion the consent of certain upon obtaining officers, town or an case upon appraisement by jury consent, not town authorities will for which use they are to as shall be fixed pay compensation upon 1847, 223, or the agreement (Laws appraisement. 26.) $ The act of into road would changing plank all that travel should ordinarily require prohibited while the or should change making, have the exclusive occupation during period. is done in What such cases is in nature of repairing and the existing improving interruption travel, if would be more less any, according to the circumstances and condition of the road the par- not, ticular case. It was my opinion, contemplated should take of a highway, possession *5 it and exclude from while their work was going public on. inconvenience to Any necessarily arising to, would to be it have submitted and would be the duty of the render to that enience as inconsider- -incom able as would be The reasonably practicable. expression section of the 28th act these companies authorizing “to take and hold” the lands which have been appraised refers, I to lands used think, not before but highways; 531

ALBANY, MARCH, 1056. Plank Hoad Co. which to use also the they if includes highways, an to exclusive have does not acquired, give use, a road.” a use for the of such but only “purposes rule, circuit, The was laid down at the true my opinion, of the assimilated to that where duty of town officers wiien the highways. engaged repairing true that neither is unquestionably towns, com officers the directors of whole within required grade space panies, that a traveler can drive limits of the so highway, safely cases, In if over of it. his carriage every they part width, and of suitable so for carriages provide pathway of its reasonable it as there shall be no danger define that mistaken, if traveler fault will not they being which not an chooses upon part try experiment from The cases referred to thus traveling. prepared me down a in New the courts England lay appear hesitate I should not in this which rule reasonable respect, v. case requiring (Johnson application. adopt Pick., Packard, 286; Packard 16 6 v. Whitfield, Shepley, ColErain, Metc., 191; The Inhabitants 13 v. Shepardson Verm,., The 55; v. Rice The Town Montpelier, 470.) rule in full benefit of this defendant had the part com told that which the were a suitable travelers had constructed pathway, pany it, at off from it was their own risk. chose to turn was, left the in this case complaint condition, road in newly place traveled, as formerly graded diverged of ordinary to mislead would be persons prudence likely and unsafe caution, the old take and induce them to dis were new and safe course. instead recover, unless told could tinctly it to have not understand such a do found state facts. defendants been denied on the argument *6 IN CASES THE COURT OF APPEALS Plank Hoad Co. would be liable in case and doI not enter- supposed, tain doubt as to their in a case responsibility Where a road is so constructed or altered as to present one two both of which exhibit the point paths, appearance travelers, been used one them leads to having by safe, while the is other dangerous precipice, quite indicate, those the road duty having charge a manner not be mistaken day night, avoided; and, if unsafe is to it cannot be otherwise done, to such an turn obstruction will the traveler put up from the track. wrong said

What have of several of the disposes requests for instructions to to the 1 do not think be given jury. should have been charged they guilty of a from a fault market town in the returning evening. was, doubt, no to use such caution as the duty pecu- of the the time of of a day liarity required prudent man; and the were so instructed in that part in which the to the responded request care him. extraordinary He required said the defendant was bound to use care reasonable the defendants were not entitled to have prudence. Again, instructed fifth according with- proposition, out the had not left the road in qualification travelers, condition to and with that mislead qualification instruction was and the same given charge; the sixth remark The observa- applicable proposition. tion the instinct of horses an old traveled taking respecting track, when there had does been change law, me seems to to have been raise any question comment the facts. proper upon whole, case seems to me to have been tried Upon on the with discrimination legal part judge; a hard dealt the defendants have had measure out them which I the fault (as to give opinion), *7 MARCH,

ALBANY, 533 1856. Sterling Plank Co. Ireland Road facts, and not of determining lay jury n the law. down ing should be.affirmed. T. A. J. the circuit was justice clearly Johnson, to nonsuit the refusing right plaintiff, permitting cause to go jury. follows, because there is

It no means no necessarily by the court is to in the decide the conflict testimony, of law. The issue between fact question parties seldom established such direct very by negligence that it can be taken evidence from the considera positive tion of the as matter of law. pronounced upon On the almost deduced as an contrary, always inference of fact from several facts and dis circumstances after their closed connection and relation testimony, by in issue to the matter have been traced and their weight In such cases the inference cannot be force.considered. made without the intervention of a all the j ury, although witnesses their statements or there be but one agree statement which is consistent throughout. Presumptions fact, nature, their are not very strictly objects science, like of law.1*3That legal the care presumptions exercised at the time of the injury, defendant, were both for the negligence questions determine, cannot admit of doubt. true, It is not as claimed the defendant’s apprehend, counsel, that a this when it has corporation description, taken all the to authorize it to use a com- steps necessary mon for its the same exclusive acquires highway to the land over which such and' to highway passes, its use and constructing occupation engaged road, that it to the lands of individuals does acquired Hudson 1 See 3 Kern.—34 Stackus River Bridge New York Central v. Co., ^[80] Ibid. 622. Railroad Co., Ochsenbern 79 N. Y. v. Shapley, 464, ^[85] 469. Ibid. 224. Hart v OASES IN TIIE OF COURT APPEALS. against Osivego, Plank Road Co.

the same can purpose. acquire greater easement, than a mere which is possesses, public excluding and that not for the purpose for the pur- way, their enjoyment *8 interrupting travel and and transportation pose aiding facilitating of property. incident, acquires

As a corporation necessary embankment-, and excavation to its right grade enable to to take the and necessary necessary, possession so, Still and down and secure it to to plank. do lay finished, until is its is not exclusive until right free have right passage, that is done public as not exercise its hound so to rights corporation this to interfere with public. right unnecessarily duties of corporation time the this rights During offi- to those public towards the analogous public exercising While streets cers highways. repairing also, has no it owes a own duty rights obstructions and continue parts dangerous place do or persons ordinary prudence travel, warn some or notice to will be without guard likely think, results, from the and this .them of their danger; which it the uses for nature acquired, and the necessities of the case. (cid:127)intended was, therefore, there, and was lawfully to exercise care and required only, prudence n according the condition and circumstances which was placed.

Such the relative duties of the being rights parties there was no error

nor in the refusal to requested.

The law was laid down and the facts correctly properly submitted, nor is the verdict without evidence to support it. The must therefore be affirmed. affirmed.

Judgment