
    Mary J. Newell, Respondent, v. The Town of Stony Point, Appellant.
    
      Negligence,—injury from a wagon striking a stone on a MU, and throwing out the occupant—proof as to care—what part of the road constitutes the highway.
    
    In an action to recover damages for personal injuries sustained by the plaintiff in consequence of the dangerous condition of a highway in the defendant town, the evidence tended to show that such condition of the highway had existed for several months and that the highway commissioner was notified thereof, but that no work was done upon the road during the year in which the accident happened; that on the occasion of the accident the plaintiff was riding along the highway with her husband in a platform spring wagon drawn by a gentle horse; that they were driving down a steep hill and that the husband had applied the brake; that the plaintiff was sitting on the seat with him looking ahead when a wheel on the husband’s side of the wagon struck a stone and she was pitched forward; that before she could recover herself, the wagon struck a second stone and she was thrown to the ground and injured.
    
      Held, that the inference that the plaintiff was exercising a reasonable degree of care might be drawn from the circumstances, although there was no direct testimony to that effect.
    The traveled portion of a highway is not confined to the part actually used by vehicles the greater portion of the time, but includes that part which is held open to the public as a highway and which is used in passing other teams.
    Appeal by the defendant, The Town of Stony Point, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 11th day of June, 1900, upon the verdict of a jury, and also from an order bearing date the 18th day of May, 1900, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      William McCauley, Jr., for the appellant.
    
      Clinton F. Ferris, for the respondent.
   Woodward, J.:

The plaintiff seeks to recover for personal injuries sustained through the alleged negligence of the defendant in the care and maintenance of a óertain highway in the town 'of Stony Point. There was evidence: from which the jury might find that the particular highway was known to be in a dangerous condition for a period of some months before the happening of the accident complained of; that the highway commissioner was notified of the fact and promised to make repairs, but that no work was done upon the road during the year in which the accident happened. The plaintiff, a woman about forty-three years of age, married and the mother of a family, was riding along this highway with her husband in a platform spring wagon, drawn by a single horse. They were driving down hill, the road was steep, and the husband had applied the brake to the wheel. - She was sitting on the seat with him, looking ahead, when the wheel on the husbandi’s side of the wagon struck a. stone and she was pitched forward. Before she could gather herself up the wagon struck a second, stone, and she was thrown to the ground and severely injured in her foot, side, back, etc. At' least this is the evidence on the .part of the plaintiff, and, if the jury' believed the testimony, it was justified in concluding that such were the facts. The learned trial court charged the jury, without exception on the part of the defendant, that the negligence of the hus- ' band in driving, if such there was, could not be imputed to the plaintiff, and the jury might draw the inference from the testimony that the plaintiff Was exercising that reasonable degree of care Which the law demands in sitting quietly upon the seat with her husband and riding down this public highway which other .people were in the habit of using. While it is true that the burden is upon the plaintiff to establish that she was exercising a reasonable degree of care, this may be gathered from the facts and circumstances . disclosed by the evidence and need not be direct testimony that she was using such degree of care. When she had described the circumstances of the accident, the character of the wagon,, the fact that, the horse was gentle and had never run away, that the husband had applied the brake, etc., the inference may fairly be drawn that she had exercised the degree of care demanded of her under the circumstances.

There is no merit in the suggestion made by the defendant that it is not liable, because the stones on which the wagon struck were outside of the traveled portion of the highway. The traveled portion of a highway is not confined to the part actually used the greater portion of the time by vehicles, but is that part which is held open to the public as a highway, and which is used in passing other teams. There can be no question as to the duty of the defendant to keep such open way, over which it has assumed to exercise control, in a reasonably safe condition for travel, taking into account the circumstances of the road and its surroundings.

The verdict for $1,000, in view of the proof, is not excessive within the rules recognized by this court. There is nothing to indicate that the jury acted from improper motives or from a mistaken view of the facts, and where reasonable men might disagree it is peculiarly a question for a jury to determine, and their verdict is. conclusive upon this court.

The judgment and order appealed from should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  