
    Clapper v. Town of Waterford.
    
      (Supreme Court, General Term, Third Department.
    
    November 30, 1891.)
    1. Highways—Defects—Evidence.
    In an action against a town for personal injuries caused by a defect in a gutter' bridge—a part of a permanent cross-walk in defendant’s highway—the injured party may testify as to the condition of the bridge on the morning following the night of the accident, in the absence of evidence of any change therein.
    
      H. Same—Acceptance by Town.
    The bridge and cross-walk had been constructed years before by the inhabitants, and it was a question whether or not the town had accepted it as a part of the town highway. Held not error to permit a witness to testify that, after the accident, a highway commissioner repaired the bridge, where counsel state that the evidence is offered merely to show the exercise of control over the bridge, and that there •were sufficient funds for its repair.
    
      3. Same—Contributory Negligence.
    Evidence of the muddy condition of the road at the cross-walk at the time of the accident is admissible as tending to excuse plaintiff from the imputation of contributory negligence.
    4. Same—Failure to Repair—Want of Funds.
    Defendant set up in defense want of funds in the hands of the commissioners for repairs, and a commissioner called by defendant testified on the subject of such funds. Held not error to permit, on cross-examination, the question: “Did the board, in the spring of 1889, call for the appropriation money to be voted at town-meeting?”
    5. Same—Neglect of Supervisor.
    Where the lack of funds in the hands of the highway commissioners of a town is due to the neglect or refusal of the town supervisor to pay over to the commissioners funds in his hand applicable to roads and bridges, the town will not be excused from liability for not keeping the highway in repair, on the ground of lack of funds.
    & Same—Province of Jury.
    Plaintiff was injured by a defective gutter bridge,—a part of a permanent crosswalk of a highway in defendant town,—constructed years before by the inhabitants. The entire width of the highway covered by the bridge and walk was a part of the worked highway. Held, in an action for the injury, that the question was properly submitted to the jury whether or not the town had adopted the walk and bridge as a part of the town highway, and that defendant was not entitled to a charge that, if the jury find that the bridge was a board sidewalk, rather than a part of the worked highway, the highway commissioners were not bound to keep it in repair, such charge not being applicable to the facts of the case.
    Appeal from circuit court, Saratoga county.
    Action by Elizabeth A. Clapper against the town of Waterford to recover for personal injuries from a defect in a gutter bridge on defendant’s highway. Defendant appeals from a judgment entered upon a verdict for plaintiff for $500, and from an order denying a motion for a new trial.
    Affirmed.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      I. C. Ormsby, (J. W. Houghton, of counsel,) for appellant. P. D. Niver, for respondent.
   Mayham, J.

The respondent, in passing over a foot-bridge over a ditch in a public highway in the town of Waterford, stepped into a hole in the plank, and was injured. The highway was through a thickly peopled section between the city of Cohoes and the village of Waterford. On either side of the highway was a ditch, constructed for the ordinary drainage—surface drainage—of the highway. At about right angles with it was a cross-walk. The bridge over the ditch constituted a part of the cross-walk, was constructed of plank placed upon stringers or timbers imbedded in the road-bed, and in the bank or curb outside of the ditch, with plank extending from one to the other across the ditch The length of the plank bridge was about 8 feet, and its width about feet, and it was about 12 inches above the bottom of the ditch. The proof tended to show that in this plank walk or bridge there was a hole through the planks about 10 inches long and from 4 to 5 inches wide, and that the same had been there from May previous until the 31st of July, when this accident occurred. This bridge had been constructed in connection with a stone cross-walk across the road-bed, some years before, by the inhabitants, and, from time to time, had been kept in repair by them. There was no proof that either the commissioners of the town or overseer of the ward had actual knowledge of the existence of this hole in the bridge or walk', and the defendant proved on the trial that the commissioners of the highways had no funds with which to repair bridges at the time of the accident. Several objections and exceptions were taken by the defendant to evidence offered by the plaintiff on the trial. Exceptions were also taken to the refusal to nonsuit the plaintiff on the motion of the defendant; also to the judge’s charge, and to his refusals to charge as requested by the defendant.

The plaintiff, on her own behalf, was permitted to state the condition of the hole in the bridge as she found it the morning after the accident. This, the defendant insists, was error. The injury occurred about a quarter to 9 o’clock in the. evening, and. the examination of the hole in the bridge was made the next morning. We see no error in the admission of this evidence. In Burns v. City of Schenectady, 24 Hun, 10, cited on this point by the plaintiff, it was held error to exclude the testimony of a witness that he had seen similar accidents from the same obstruction for which the action was brought before the time of the injury complained of. This is not an authority to support the defendant’s theory here. In Collins v. Railroad Co., 109 N. Y. 243, 16 N. E. Rep. 50, also cited by the defendant on this point, the witness was not permitted to state the result of his observation as to the capacity of two different smoke-stacks to prevent the emission of sparks, and the exclusion of the evidence was held error. I fail to see how that can be claimed as an authority for the defendant’s contention on this point. In Stodder v. Railroad Co., (Sup.) 2 N. Y. Supp. 780, evidence was given under objection of the condition of a railroad switch after the accident, and after proof that it had been changed; and it was held that such evidence was not admissible without proof that, in spite of the substitution of the new portion, the condition of the switch remained practically the same as it was when the accident happened. But the ruling was put upon the ground that a change had been proved, and the effect of that confessed change must be known before its changed condition can be competent as proving its condition at the time of the accident. But a change is not presumed. The legal presumption is that things remain as they are proved to have existed until the contrary is proved, ánd we think the condition in which the bridge was the morning after the injury is presumptively its condition the night previous, and that the burden of showing it different is upon the party asserting the change.

It is also insisted that the trial judge erred in receiving evidence of repairs of this bridge by Quackenbush, after this injury. It was proved by the plaintiff, under the objection of the defendant, that Quackenbush was at the time acting commissioner of highways of the town of Waterford. But we see no valid objection to that evidence, nor dó we think that it was error to prove his acts in relation to this bridge. It was a controverted, and, perhaps, an important, question in the case whether or not the town authorities had recognized, constructed, or adopted this bridge as a part of the highway; but some evidence was sought to be given on both sides of this question. That being so, we think it was competent to prove the acts of the commissioners of highways of the town, in reference to the bridge, solely as bearing upon that question. After showing that Quackenbush was seen at this bridge about six days after the accident, the witness was asked this question: “Did you see Quackenbush, on this occasion, repairing this bridge in question?” The question, as appears from the case, was accompanied by the following statement: “This question was asked for the purpose of proving only that the commissioners of the town of Waterford exercised control over the bridge, and that they had sufficient funds at the time of this accident to repair the bridge; and it was not offered to show anything else.” This question was objected to upon the ground that it was incompetent, improper, and immaterial; that Quackenbush was not shown to be commissioner; that the bridge was not shown to be in the same condition in which it was at the time of the accident; that the evidence did not tend to show jurisdiction by the proper officer, or that they had funds. If this question had been put without qualification, so that the inference could be drawn that it was offered as an admission that the bridge was out of repair to the knowledge of the officers of the town, it would, have been clearly in competent, within the decisions of the following cases: Corcoran v. Peekskill, 108 N. Y. 151, 15 N. E. Rep. 309; Salters v. Canal Co., 3 Hun, 338; Payne v. Railroad Co., 9 Hun, 526. The vice of this kind of evidence is tersely expressed in the Corcoran Case, supra, where the judge says: “ While such evidence has no legitimate bearing upon the defendant’s negligence or knowledge, its natural tendency is undoubtedly to prejudice and influence the minds of the jury.” But in the case at bar this inference was expressly disclaimed by the question itself; and it was confined to two inquiries, one, at least, of which was pertinent to the subject under investigation, viz., whether or not this was a part of the highway which was under the care and control of the commissioners. Upon that subject the acts and declarations of the commissioner would be competent. Bidwell v. Town of Murry, 40 Hun, 190, 191. There was no attempt to show the kind of repairs done by the commissioner to this bridge, and no inference could be fairly drawn that the repairs related to the hole, in the plank on which the alleged injury occurred; and, as the question itself was an express disclaimer of any inference of an admission that the bridge was out of repair to the knowledge of the commissioner, we do not see that its admission was error. In Payne v. Railroad Co., 9 Hun, 526, the objectionable feature in the evidence was that it showed repairs done in remedying the alleged defect which had produced the injury complained of, and thus bore directly upon the question of the negligence complained of. In the case at bar its offer and reception was for quite another purpose, and was, we think, competent, within the rule laid down in the case of Morrell v. Peck, 88 N. Y. 398.

Nor do we think it was error to admit the evidence of the plaintiff showing the muddy condition of the road at the walk at the time of the accident. That evidence was proper, we think, as a circumstance tending to excuse the plaintiff from the imputation of contributory negligence. The question put to the witness John Richmond was proper on a cross-examination of that witness. The plaintiff called him, and proved that he, with Quackenbush and Wood, were commissioners of highways of that town; and he was interrogated by the defendant, and gave evidence on such examination, as to the subject of funds in the hands of such commissioners, and other matters relating to their official acts. On the cross-examination he was asked the following question: “Question. Did the board, in the spring of 1889, call for the appropriation money to be voted at town-meeting?” This was objected to by the defendant, and the objection was overruled. This was not error on a cross-examination, in view of the evidence which had been elicited by the defendánt on the direct examination of this witness.

The defendant insists that the trial court erred in refusing to charge as requested in the defendant’s third request to charge. That request was as follows: “Third. That, if the commissioner had demanded of the supervisor the highway money in his hands, and he did not pay it to them, and they for that reason had no funds, defendant is not liable, and the jury may find that the highway commissioners had used reasonable diligence in obtaining the funds; and, not obtaining them, they are not liable for any negligence in not repairing the highway if it was out of repair.” We think this request to charge was properly refused by the judge. The liability, if one existed in this case, was one of the town, and not that of the commissioners of highways in the first instance. Section 1 of chapter 700 of the Laws of 1881 provides that “the several towns of this state shall be liable to pay any person suffering the same for all damage to person or property by reason of defective highways or bridges in such town in cases in which the commissioner or commissioners of highways of town are now by law liable therefor, instead of such commissioner or commissioners of highways.” If the supervisor, being an officer of the town, to whom the funds applicable to roads and bridges have been paid by the collector, refuse or neglect to pay the same over to the commissioners, and by such neglect the commissioners are without funds, it is difficult to see upon what principle the town can be excused from liability for not keeping the highways or bridges in a reasonably safe condition for the public travel on the ground that it or its officers charged with the duty of making needed repairs is out of funds, and therefore excused from the performance of such duty. It is also insisted that the court erred in refusing to charge as requested in the defendant’s sixteenth request to charge. The court in that request was asked to charge that, if the jury found that the gutter bridge was a board sidewalk, rather than a part of the worked highway, the commissioners were not bound to keep it in repair. As an abstract proposition, that request to charge may be sound, but we fail to see its application to this case, and hence the court was not required to charge it. It is doubtless true that the commissioners or town could not be called upon to keep in repair a private sidewalk upon a country road, which they had in no way authorized or adopted as a part of the public street; but there is no evidence that would justify the conclusion by the jury that this was such a structure. The proof showed it to be a stone walk across the traveled part of the highway, and a bridge over the ditch, which was also a part of the worked portion of the high way. It had been there for many years, and used in the same manner by the public. In Hiller v. Village of Sharon Springs, 28 Hun, 346, this court held that, “if an individual voluntarily puts down a sidewalk, the village may, by acquiescence in the act for a sufficient length of time, and by other acts, accept of the sidewalk, and with it the village must take the obligation of keeping it in repair.” This rule may not, in its full force, extend to country roads; but when a cross-walk, which constitutes a part of the traveled street, and covering the ditch, has been suffered to exist for a number of years, we think, within the principle of the above case and others cited in that case by the court, it may be properly submitted to the jury for them to determine whether or not the town had adopted it as part of the worked highway, which it is bound to keep in a reasonably safe condition for the use of the public. The defendant excepted to the language of the judge in which he says that, “ if they did not exercise ordinary care, it is a culpable negligence. ” This was in response to a request of the defendant to charge that the jury, to find the defendant liable, must find that the highway commissioners were guilty of willful misconduct or culpable neglect. The judge charged as requested, but added as above quoted. We do not think the remark.to which the exception was taken, when taken in connection with the direct response to the request, was error. The charge of the judge upon the whole case was impartial, and a correct exposition of the law applicable to th'e same, and we ■see no error committed upon the trial for which the judgment should be reversed. Judgment affirmed, with costs.

Learned, P. J., concurs.

Landon, J.

I gravely doubt whether the town is liable. The citizens made the sidewalk and cross-walk. Laws 1860, c. 61; Laws 1863, c. 93; Laws 1881, c. 233. If the town could not object, its failure to do so is not an adoption. But I do not dissent.  