127 N.Y. 40 | NY | 1891
The evidence warranted the conclusion that without fault of the plaintiff his injury was occasioned by the road scraper in the street. At the time of the occurrence it was dark, and the plaintiff had no knowledge that the machine was there. In its absence the street was suitable for driving up near to the sidewalk. The only right of action against the defendant is that furnished by the statute which provides that "the several towns in this state shall be liable to any person suffering the same, for all damages to a person or property by reason of defective highways or bridges in such towns, in cases *44
which the commissioner or commissioners of highways of said towns are now by law liable therefor, instead of such commissioner or commissioners of highways." (L. 1881, ch.
It is urged on the part of the defendant that the street in question was not defective within the meaning of the statute, because there was no defect in the bed of the road. It is true that there was no defect in the structure of the roadway, but the highway, as such, was in a defective condition. The term "defective highways" was used in reference to their condition for public travel upon them, which their designation as highways imports, and in view of the purpose for which they are established and maintained. And the impairment of a highway for public use may be no less such by an obstruction placed in it than by a physical disturbance or injury to the bed of the roadway. In either case the highway is in a defective condition, and evidently such condition is within the meaning of the term "defective highways," as used in the statute. There was nothing contrary to these views in the doctrine ofHewison v. City of New Haven (
Then, as the commissioner had the care and superintendence of the highways in the town, and was charged with the duty of giving directions for repairing them and of causing them to be kept in repair (1 R.S. 501, § 1), and, as the scraper belonged to the town, or one of its road districts, and was employed in working the highways, it may properly have been under his control. (L. 1883, ch.
And that fact, in view of the matter so alleged in the defendant's answer, tended to furnish the inference that the commissioner had the control of the machine and left it at the place in question, and the jury were permitted to consider, by way of its corroboration, the omission of the defendant to call him as a witness or to offer any evidence on the subject. (Reynolds v. Sweetser, 15 Gray, 78; People v. Dyle,
There was some evidence in support of every fact essential to recovery by the plaintiff, and the question of its weight is not here for consideration.
It follows that there was no error in the denial of the motion for nonsuit.
The judgment should be affirmed.
All concur, except PARKER, J., dissenting, and POTTER and BROWN, JJ., not sitting.
Judgment affirmed.