
    SIDNEY A. DAY, Plaintiff, v. SAMUEL CROSSMAN and others, Commissioners of Highways, Defendants.
    
      Commissioners of highways — negligence of.', in repairing bridges — Onus of proving possession of funds by them.
    
    The defendants, as commissioners of highways, had, several weeks prior to July 17,1873, caused the plank covering to be removed from a bridge which had become unsafe, and had drawn a quantity of stone to the place, for the purpose of repairing the bridge, the openings of which they had closed. On the east side of the bridge, good approaches had been graded by the defendants, from the bed of the creek each way. On the seventeenth of July, the plaintiff, who was well acquainted with the situation of the bridge and creek, attempted, on a dark night, to cross the stream, which was very much swollen by a sudden and severe storm, and in so doing his horse was drowned. In an action brought by him to recover the value of the horse, held, that he was properly nonsuited; that he was guilty of negligence in attempting to cross the stream under the circumstances, and that his injury did not result from the omission of the defendant to repair the bridge, in such a sense, and with such intimacy of connection, as to render the defendants liable therefor.
    At the trial, the court held that the defendants could only be liable upon proof that there were funds in their hands with which to repair the bridge, and non-suited the plaintiff, because no such proof had been given.
    
      Semble. That it was too late for the defendants to raise that point; that the presumption of the possession of funds was against them, upon the ground that they had recognized their duty to repair the bridge by commencing so to do; and upon the ground that the onus was upon them to show that they had no funds.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term.
    The plaintiff sued to recover for the loss of a horse, drowned in a stream crossing the highway in the town of Pavilion.
    Several weeks prior to the occurrence, which took place July 17th, 1873, the defendants, who were commissioners of highways in that town, caused the plank covering to be removed from one of the bridges, which had become so worn and decayed as to be unsafe. The defendants had drawn a quantity of stone to the ground, for the purpose of repairing the abutments of the bridge, and with these had secured the approaches to it, so that people could not drive into the opening. On the east of the bridge, and within the highway, good approaches had been graded by the defendants, from the bed of the creek each way, so that teams could easily and safely cross the run. ' On the 17th of July, 1873, the plaintiff crossed the creek in a one horse wagon about four o’clock, p. m. At this time the brook was dry. At six o’clock that afternoon, a severe rain storm came on, with thunder and lightning, which lasted two or three hours. The run was flooded, its banks overflowed, and the current was very swift. At about ten o’clock, at which time it was very dark, plaintiff attempted to cross the stream. The current swept the wagon down against the bridge abutment, took the horse off his feet, and he was drowned.
    The other facts are stated in the opinion.
    
      M. R. Peck, for the plaintiff.
    
      R. Ballard, for the defendants.
   E. Daewht Smith, J.:

The motion for a nonsuit, at the close of the plaintiff’s case, was made upon three grounds, then stated. First, on the ground that the plaintiff had shown no negligence on the part of the defendants, in the discharge of their duty. Second, on the ground that the plaintiff was guilty of negligence in driving into the stream at the time of night he did, it being a dark night, and the stream flooded, as it was, which negligence contributed to the injury. And third, that if the defendants could in any way be liable for negligence in the discharge of their duty, it could only be upon proof that there were funds in their hands, appropriated for the purpose of making repairs of roads and bridges; and no such proof had been given. The circuit judge granted the nonsuit, on the last mentioned ground. The particular ground upon which the learned judge granted the nonsuit, I think, is in accordance with the cases of Garlinghouse v. Jacobs, Robinson v. Chamberlain, and Hines v. The City of Lockport.

But, if this action could otherwise be maintained, I should be inclined to hold, on this point, that it was too late for the defendants to raise that point, or that the presumption of the possession of funds was against them, upon the ground that they had recognized their duty to repair the said bridge, practically, by taking off the plank upon it, and entering upon the work of repairing it, by getting out the necessary stones and drawing them upon the ground for the abutments of a new bridge, or upon the ground that the onus was upon the- defendants to show that they had no funds.

If the defendants were guilty of unreasonable delay in completing the work, so begun upon said bridge, they were doubtless liable to indictment for such breach of duty, but for a mere omission, for a brief period, to fulfill a public duty, they are clearly not liable to individuals, except where some special injury has resulted to them, from such neglect or omission. The injury must be proximate upon such neglect. In Hover v. Barkhoof, the injury resulted from the falling in, or breaking down, of a bridge over the stream, negligently left out of repair and unsafe. In Garlinghouse v. Jacobs, the damages were caused, also, by the breaking down of the highway bridge, when the plaintiff was crossing it. In Adsit v. Brady, the defendant negligently left a boat sunk in the canal, so that plaintiff’s boat ran against it and was injured. In Weet v. The Trustees of Brockport, the defendants left a pit-hole open in the sidewalk, with no guard about it, or light to enable persons, passing upon the street, to see it, and the plaintiff ran into it in the night time ; and, in all the cases I have seen, where public officers have been held liable for neglect, which consisted in the mere passive omission of duty, the action has been based upon some direct injury, suffered and resulting from such neglect. In this case, the plaintiff’s injury was not proximate, or consequent upon the neglect of defendants to repair the bridge. It was the immediate result of his own negligence in attempting, in a dark night, to ford the stream, rapidly swollen by a sudden and severe storm, where it was otherwise ordinarily safe to drive, and where he had passed, safely a few hours before, and knew intimately the ground and the situation of the highway, the bridge and the creek at that place. His injury did not result from the omission of the defendants to repair the bridge in question, in such a sense, and with such intimacy of connection with the cause of neglect alleged, as to furnish the basis for a cause of action. The nonsuit, we think, might properly have been granted upon either the first or second grounds upon which it was moved, and, the judgment being right, it should not be reversed upon an erroneous ground or reason. Judges who decide correctly, are not required to give good, or the best reasons for their decisions, and particularly where other proper grounds are, at the same time, presented for their consideration.

A new trial should be denied.

Present—Mullin, P. J., Smith and Gilbert, JJ.

New trial denied. 
      
       29 N. Y., 297.
     
      
       34 N. Y., 389.
     
      
      
         5 Lansing, 16.
     
      
       Ellis v. The Village of Lowville, 7 Lansing, 434.
     
      
       44 N. Y., 113.
     
      
       4 Hill, 630.
     
      
       16 N. Y., 161.
     
      
      
         Stevens v. Hyde, 32 Barb., 171; Beals v. Home In. Co., 36 Barb., 614; affirmed, 36 N. Y., 522.
     