
    Lydia A. Glasier, Resp’t, v. The Town of Hebron, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    1. Negligence—Defective town highway—Proximate cause.
    Plaintiff was driving along a town highway, seventeen feet wide, drifted with snow, when she met hays driving a sleigh loaded with coal barrels. At this point the hank of the highway was steep, without a fence and descending abruptly eight feet to a pond. She stopped and waited for the boys to pass; as they did this a barrel slipped off their sleigh, and frightened her horse which backed off the highway into the pond. Reid, that the fright of the horse and the absence of a fence were both proximate causes of the accident, and as the town was liable for the latter, plaintiff could recover.
    2. Same—Contributory negligence.
    There "was some evidence that the boys stopped at a point beyond the dangerous place, and told the woman to come on. To a request that if this was so, it was her duty to pass there, the court replied that the question was whether she acted as a person of ordinary prudence would have done. Held, sufficient.
    3. Same—Duty of town.
    The defendant urged that it was not hound to erect a barrier. The court left it to the jury to say whether the road was dangerous at that point. Held, correct.
    4. Same.
    The fact that an accident is rare or unforeseen is not a defense.
    5. Same—Statutory liability of town.
    The defendant requested the court to charge in effect that if the action could not have been maintained against the commissioner of the town, it could not be maintained against it. Held, properly refused. That it appears from §§ 1 and 3 of ch. 700, Laws of 1881, that there may be cases where the town itself maybe liable for negligence, where the commissioner is not; e. g., where it neglects to make repairs which it should have made, or does not furnish funds therefor when it is able to do so.
    6. Same—Evidence—Photograph.
    The admission in evidence of a photograph of the locus in quo, taken after a fence had been erected, is not error, where the court stated that the subsequent erection of such fence was not evidence of negligence.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.
    
      Edgar Hull (J. S. L'Amoreaux, C. H. Sturges and L. H. Northup, of counsel), for app’lt; J. M. Whitman (Potter & Lillie, of counsel), for resp’t
   Learned, P. J.

A highway in Hebron runs for some eighteen rods by the southerly side of Eeed’s pond, and from the road there is a steep descent to the pond. For much of the distance there are trees and shrubs along the bank. On the 24th of March the plaintiff was driving along this road and had reached a place-where, for about twelve feet, there were no trees along the bank. At this point she saw, at a distance of some thirty feet, an approaching vehicle. It consisted of two bob-sleighs with some boards laid across, on which were two barrels of coal, and it was drawn by one horse. Two boys were in charge of it As she saw them they were at the horse’s head arranging the harness. She stopped; and they said they would be along in a minute. She said all right, and waited for them. Just as the boys with their horse and sleigh reached the plaintiff and turned out to pass, one of the barrels slid off, against, or in front of, plaintiff’s horse. He became frightened and backed her cutter down the-bank, and she with the horse and cutter fell into the pond, breaking through the ice. The plaintiff was injured by the accident, and the conseq uent exposure, and sues for damages.

There is some disagreement between her account and that of the boys. They say that they called to her to come on, while they stood. But this is immaterial. The jury probably accepted her account; and at any rate there is no proof that she did not, exercise her best judgment as to the place where the two vehicles-would pass.

The great snow storm, called “the blizzard,” occurred about ten-days before. Since that the snow had melted and frozen, so that the snow or ice upon the roadway was slanting. Thus probably it happene that as the boys turned out on the upper side their sleigh tipped enough to cause the barrel to slide off. The plaintiff was on the northerly side of the road, that nearest to the pond. There was no fence or other protection on the side of the road next to the pond. From the roadbed, which was about seventeen feet wide, there was a slope downwards of about eight feet, with a drop of about four feet, and from that a nearly vertical drop of about four feet to the water. It can readily be seen that as the plaintiff’s cutter was necessarily near to the edge of the bank, her horse in backing would probably soon get the rear of the cutter over the edge of the bank, and then the result which followed would be almost inevitable.

The first point urged by defendant is that the absence of a guard or rail at the bank was not the proximate cause of the injury; that such cause was the falling of the barrel of coal.

The object of having a rail or guard put up at the side of a road in such a place is, of course, to prevent travelers and vehicles from falling down the bank. It is not simply to indicate that there is a bank at the place. It is evident that when, in daylight, a person is driving a horse, not disturbed by any exciting cause, along such a place, there is hardly any danger even if there be no rail or barrier at the side. The rail then is especially to protect travelers when some f right makes a horse deviate from the ordinary track, or when darkness prevents a traveler from seeing, or when some unexpected cause puts him in danger. Experience has shown that unforeseen causes may expose the traveler to the danger of being thrown down such a bank. Hence it is proper to erect a barrier. And whether or not we call the cause which may produce such danger proximate, still that is the kind of danger against which those who have charge of the road should guard by the means above mentioned. The rail is put up because it is known that such danger will occasionally happen. To neglect to put it up is culpable.

Of course all the surrounding circumstances contribute to produce any result under consideration. Hence it is not always easy to assert any one to be the sole cause. If the pond had not been there the plaintiff would not have been wet. H she had stayed at home she would not have been hurt. If the horse had not been frightened he probably would not have backed, and so on.

There is some conflict in the cases in different states on questions similar to the present, but it seems to us of little use to discuss them, when the highest court in our state has laid down a rule which must be controlling with us. In Ring v. Cohoes, 77 N. Y., 83, the court of appeals, after referring to the decisions of other states, say: “When two causes combine to produce an injury to a traveller upon a highway, both of which are in their nature proximate, the one being a culpable defect in the highway, and the other some occurrence for which neither party is responsible, the municipality is liable, provided the injury would not have been sustained but for such defect” That language was applied to a case where the plaintiff’s horse became frightened without his fault and ran into a hydrant. There was also a pile of ashes which obstructed the street. The referee had found that both the ashes and the hydrant were culpable defects. The court of appeals held that the hydrant was not a defect, but that the ashes might have been. The two causes which the court spoke of as combining to produce the injury were the fright of the horse and the defect in the street. These they spoke of as “ in their nature proximate.” That case is quite analogous to the present. For here are the two causes, the fright of the horse and the defect in the highway, which may be called proximate; and it may be correctly said that these combined to produce the result.

The case of Lowery v. W. U. Tel. Co., 60 N. Y., 198, has no application. The question there was whether certain damages were too remote from the negligent act to enhance the recovery. ¡Nothing of that kind arises here. If the defendant is liable for the negligence, there have not been any damages allowed which were not the immediate result of the accident.

¡Nor is this a case where a new cause has intervened between the result and the alleged cause, as in the well-known case of the squib. Scott v. Shepherd, 2 Wm. Black., 892. In that case, however, though the principle was recognized, it was held not applicable.

It seems to us that a remark of Mr. Justice Miller in Ins. Co. v. Tweed, 74 U. S., 44, is very sound. After speaking of the numerous cases on proximate and remote causes he says: “If we could deduce from them the best possible expression of the rule, it would remain after all to decide each case largely upon the special facts belonging to it, and often upon the very nicest discrimination.” And so we think that this case must be decided. We are to inquire whether the defendant was negligent and whether the plaintiff was careful, and then whether the accident which she suffered was the result of the defendant’s negligence.

It was left to the jury to say whether the plaintiff was negligent. The defendant asked the court to charge that if the boys stopped at a point, outside of the path, where it was safe for her to pass and she saw it, it was her duty to have passed at that place. But the court left that to the jury to be considered on the point whether she acted as a person of ordinary prudence would have done. This was correct. Lent v. N. Y. C. & H. R. R. R. Co., 120 N. Y., 467 ; 31 St. Rep., 538. The defendant cites Ryan v. Man. R. R. Co., 121 N. Y., 126; 30 St. Rep., 624. The point there decided was that the court should have charged, under the proof, that if the space between cars and platforms was not more than eight inches, defendants were not negligent. That was not a question of contributory negligence, but a question whether, under the proof, eight inches could be held to be proper. The point in this case is very different. A traveler seeing another approaching on a road drifted with snow has to exercise his judgment as to the best place for passing. All that he is required to do is to act as a prudent man would do. A misjudgment is not negligence. Nor is there any evidence here that the plaintiff did not judge wisely.

Certainly the plaintiff was not responsible for the fright of the horse. She did not anticipate that the barrel of coal would slide off. And the whole question of her alleged contributory negligence was properly left to the jury.

The defendant further urges that it was not bound to erect a barrier at this point The court submitted to the jury the question whether the road at this point was dangerous, and whether a person of ordinary prudence would have considered it dangerous. The verdict of the jury on this point must stand, unless it can b@ said, as matter of law, that it was not the duty of the town to guard the place.

The defendant cites Hubbell v. Yonkers, 104 N.Y., 434; 5 St. Rep., 730. There the street was thirty feet wide, macadamized, and in good condition. There was a sidewalk on the west side ten feet wide, with a curbstone eight inches high. On the west side of that sidewalk there was an embankment twelve feet deep, with no railing. The court of appeals held that there was no lack of care in not fencing the embankment. The width of the road and the sidewalk with its curbstone were held to be a sufficient protection. But the court is careful to distinguish this from the cases of a road passing along a precipice. “ Those are cases where the roadway itself runs along such a place, and danger from the want of a railing was naturally to be apprehended.” In the present case the road was seventeen feet nine inches wide. The plaintiff had to turn out towards the pond in order to pass the other vehicle. The beaten road was not then more than three feet from the edge of the bank. It might, therefore, well be submitted to the jury to say whether danger from the want of a railing was not to be apprehended. And as a railing could be built for seventeen dollars, the negligence of defendant was still more apparent

The defendant urges that the accident was one of a class so rare, unexpected and unforeseen that the defendant could not be charged with negligence. The particular cause by which this horse was frightened may have been unexpected. But it is not rare or unexpected that horses shy or are frightened from some cause. And because this kind of event is not unexpected, such places as the one where plaintiff was injured should be protected.

One Getty had been commissioner of highways for three years prior to March 6, 1888. On that day Wilson was elected. Plaintiff’s accident happened on the 24th of that month. The defendant asked the court to charge that if the action cannot be maintained against the commissioner in office bn the 24th of March it cannot be maintained against the defendant. The court refused. The meaning of the request is probably that if the action could not, as the law was prior to chap. 700,. Laws of 1881, have been maintained against the commissioner, .it cannot be maintained against the defendant

Section 1 of that chapter is as follows: “ The several towns in this state shall be liable to any person suffering the same for all damages to person or property by reason of defective highways or bridges in such towns, in cases in which the commissioner or commissioners of highways of said towns are now liable therefor, instead of such commissioner or commissioners of highways.” It will be seen by this last clause that the liability of the towns is substituted for that of the commissioners, and is not additional. Section 3 is important in construing this act: “ If the defect in such highway or bridge shall have been caused by the misconduct or neglect of the commissioner or commissioners of highways in the town in which the same may be situated, then, and in such case, the town against which any judgment shall have been recovered by reason of such defective highway or bridge may bring an action against such delinquent commissioner or commissioners of highways to recover the amount of such judgment.” If a judgment is recovered against a town, then there must have been not only a defect, but also negligence in some one. And this section implies that there may be cases in which the defect is not caused by the misconduct or neglect of the commissioner, and yet in which the town maybe liable. For it says: “If the defect shall have been caused, etc.,’’thus indicating that there may be cases where judgment may be recovered against the town for its own neglect. Turning then to the first section we see that towns are liable in cases in which the commissioners were liable before. Those cases were when they neglected to make repairs of defects which they ought to have known, and for which they had or could obtain the necessary means. These then are the cases in which towns are liable; that is, when they neglect to make repairs of defects which they know, or ought to have known, and for which they have or can obtain the necessary means. If the neglect is that of the commissioner, he is liable to the town; if it is the neglect of the town, he is not

As to the matter of knowledge, the knowledge of the former commissioner must be treated as the knowledge of the town. The failure to provide necessary funds may be the neglect of the town. Ivory v. Deerpark, 116 N. Y., 476; 27 St. Rep., 643. This statute to a considerable extent has placed towns in this respect in the position of villages and cities. We think there was no error in refusing to charge as requested.

If the town by withholding funds from the commissioner can free the commissioner from liability, and then escape liability itself because the commissioner was blameless, the statute has left the injured traveler remediless.

An exception was taken to what was said to Getty, the commissioner, about the condition of the road That was proper as tending to show notice.

There was no error in the admission of the photograph of the place, although it was taken subsequently, and after a fence had been erected. The court stated that any subsequent change was no evidence of negligence.

The judgment and order are affirmed, with costs.

Landon and Mayham, JJ., concur.  