Flansburg v. Town of Elbridge

Towns — roads and highways — general rulo of liability of •towns for accidents caused by defects in highways — notice of defects — duties of highway authorities. 1. A town is not responsible for the injuries sustained by a traveler consequent upon straying from the adequate and suitable roadway prepared for travel. Highway authorities 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. 2. The statute places upon the commissioners of highways the care and superintendence of the highways of a town and makes it their duty to properly maintain them. The town clerk has no control of or duty in regard to them, nor is he in any sense the agent or representative of the commissioners; hence notice to him. is not notice to the town. 3. Evidence of an accident which occurred upon a highway, at some time previous under dissimilar circumstances, some forty-two feet from the point of the accident in question was improperly admitted, since it did not tend to prove that the place was dangerous at that time or ever before.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 12, 1911, affirming a judgment in favor of plaintiff entered upon a verdict. The action is to recover the damages resulting from personal injuries to plaintiff by reason of the negligence of the commissioners of highways of the defendant in failing to maintain a guard wall upon the north end of a culvert within a public highway from which plaintiff’s horse fell. The jury might have found as the facts most favorable to the allegations of plaintiff: The highway at the locality in question ran substantially east and west, but through several hundred feet just east of the culvert it deflected slightly toward the south. The plaintiff, driving a single horse hitched to a democrat wagon, was approaching the culvert from the east. The culvert bridged a creek, and was a stone structure surfaced with dirt. It was twenty-two feet and eight inches north and south as a part of and at right angles with the highway, and the distance from its east to its west edge was twelve feet. About twenty years prior to the accident it was reconstructed, and there was built upon each end a guard wall of stone about two feet in height and twenty-eight inches wide. Between them was a level roadway of eighteen feet. At the time of the accident, and through the two or three years last prior to it, a part of the north wall was gone by falling into the creek beneath. Its eastern three feet, approximately, were wholly gone so that the surface of the roadway at that particular place extended to the northern edge of the culvert; through the two feet, approximately, next west it was about six inches high; through the next two or three feet it Was about twelve inches high, and through the remaining part its original condition was intact. The hed of the creek flowing through it was, upon its north side, seven feet four inches below the surface of the roadway upon it. The highway was in the country, had the ordinary dirt surface and was largely used. Its roadway or traveled part was “ turnpiked ” or crowned so that it sloped either way from its center to a shoulder or grassy hank, the height of which is not stated, but the photographs in evidence indicate that while apparent it did not exceed one foot. At a point eighty-six feet east of the culvert the width of the roadway or distance between the shoulders was fifteen and two-tenths feet; twenty-six feet east of the culvert it was fifteen feet, and ten feet east of the culvert it was thirteen and one-half feet. Its northern shoulder east of and contiguous to the culvert was a substantial distance further south than was the south side of the north guard wall. In other words, the north guard wall was outside to the north of the north bank or shoulder of the roadway. The roadway was smooth, solid and in good condition. About twenty feet north of the north shoulder was a ditch which extended from the creek easterly. The surface between the north shoulder and the ditch sloped with more or less unevenness toward the ditch and grass; weeds and hushes were growing upon it. The plaintiff, driving westerly at about nine o’clock in the night of September 30, 1908, was approaching this culvert. He had been over the road a good many times. He alone described the accident and in these words: “The wind was blowing awfully strong from the south; it was awfully cloudy; and it was a fleeting rain; when I got near this spot where I went off it was a dense darkness. The horse made a stumble and went down on his — as I thought on his knees; I had the lines in both hands; he pretty nearly pulled me over the dashboard. He most rallied from that and went down again. Then the wagon and him and me all went. I was throwed clear over the wagon I think.” ' After the fall the plaintiff lay upon the north side of the ditch, twenty feet from the north shoulder of the roadway and five or 'six feet east of the eastern line of the culvert extended; the horse still hitched to the wagon was tying upon his side about five feet north of the culvert with his head in the creek, his feet' toward the roadway, and his body extending easterly in the creek and up its east bank. The wagon, completely overturned, lay straight behind the horse, parallel with the roadway, its southern side being four feet from the north shoulder of the roadway and its hind end about twelve feet east from the easterly edge of the creek. The commissioners of highways had funds available for the restoration of the wall or any reparation required. So far as appears no accident had ever occurred upon the culvert or highway of any nature caused by the demolition of the wall and no complaint made concerning its condition. At the close of the entire evidence the trial court denied the motion of the defendant that the plaintiff be nonsuited on the grounds that the- proof failed to show negligence on the part of the commissioners of highways or of the defendant, or freedom from contributory negligence on the part of the plaintiff, and submitted the issues to the jury. Thereto the defendant excepted. The Appellate Division did not unanimously render its judgment. The condition of the highway was not such as to charge the defendant with negligence. (Mack v. Town of Shawangunk, 98 App. Div. 577; Patchen v. Town of Walton, 17 App. Div. 158; Young v. Town of Macomb, 11 App. Div. 480; Grant v. Town of Enfield, 11 App. Div. 358; Waller v. Town of Hebron, 5 App. Div. 577; Sutphen v. Town of North Hempstead, 80 Hun, 409; Wade v. Town of Worcester, 134 App. Div. 51; Glasier v. Town of Hebron, 131 N. Y. 447; Hubbell v. City of Yonkers, 104 N. Y. 434; King v. Vil. of Fort Ann, 180 N. Y. 496.) Evidence of a conversation by a witness with the town clerk claimed to show actual notice to the town of the alleged dangerous condition of this road was improperly received, the question being whether the commissioner of highways, not the town clerk, had notice. (Allen v. Town of Allen, 33 App. Div. 463; Riley v. Town of Eastchester, 18 App. Div. 94; Bullock v. Town of Durham, 64 Hun, 380; Fox v. Vil. of Manchester, 183 N. Y. 141; White v. L. & Y. Co., 94 App. Div. 4; Booth v. Town of Orleans, 66 Misc. Rep. 339; Bush v. Trustees of Geneva, 3 T. & C. 409; Town of Pierpont v. Loveless, 4 Hun, 696; Touhey v. City of Rochester, 64 App. Div. 56.) It was reversible error for the court to admit evidence that a load of straw tipped over and left the road at a point forty-two feet east of this culvert in December, 1907, when the roadway was covered with sloping ice. (Waller v. Town of Hebron, 5 App. Div. 577; 130 N. Y. 673; Brady v. M. Ry. Co., 127 N. Y. 46; Dye v. D., L. & W. R. R. Co., 130 N. Y. 673; Harrison v. N. Y. C. & H. R. R. R. Co., 195 N. Y. 91; Fordham v. Gouverneur Village, 160 N. Y. 541.) Defendant was negligent in permitting this culvert and its approaches to remain without a railing or guard wall for upwards of three years. (Ivory v. Town of Deerpark, 116 N. Y. 476; Pelkey v. Town of Saranac, 57 App. Div. 337; Wood v. Town of Gilboa, 146 N. Y. 383; 76 Hun, 175; Maxim v. Town of Champion, 119 N. Y. 626; 50 Hun, 88; Bryant v. Town of Randolph, 133 N. Y. 70.) The evidence of the witness Hooper was competent to show the necessity of a barrier at this culvert. (Quinlan v. City of Utica, 11 Hun, 217; 74 N. Y. 603.)