
    Alma McCord, App’lt, v. The Town of Ossining, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 1, 1887.)
    
    Negligence—Municipal corporation—Obstruction op roads.
    This action was brought to recover damages sustained by reason of the alleged defective condition of one of the highways of the town of Ossining. One Fox was building a fence upon the line of the highway. Some stones, of the ordinary size and appearance, were placed on the side of the road and outside of the traveled part, to be used in the wall. The plaintiff, in driving along the road, was not inconvenienced by the stones; had no difficulty in passing, but her horse shied and threw the wagon against the opposite fence. Held, that there was no proof of negligence upon the part of the town officers. That the town was not liable. D'íkman, J., dissenting.
    Appeal from a judgment entered in favor of the defendant, on the report of a referee.
    In the latter part of November, 1884, one Fox, commenced to remove a fence adjoining his property along a public highway, in the town of Ossining, and to rebuild the same out into the highway some eight or ten feet from the former location of the fence, and placed the foundation stones in the gutter along the side of the highway, for a distance of about two rods.
    Before so placing these stones, Fox, by his agent, applied to one Wheeler, then a commissioner of highways of said town, for him, said Wheeler, to designate him, said Fox, the line of the highway adjoining his land at the place where he desired to rebuild said fence.
    The line was staked out and Fox commenced to build on that line, and placed the foundation stones on or near said line in the gutter along the side of the road as above-stated. On the 10th or 11th of December, 1884, the attention of Bartholomew Ryder, another of defendants commissioners, was called to the manner in which Fox was building his fence, and the obstruction to the highway caused thereby. On the same day a meeting of the commissioners of highways of said town was held, and at said meeting a resolution was passed directing Fox to remove the said obstruction. This notice was served within a day or two after-wards on Fox, to which notice Fox paid no attention, and the commissioners did nothing further in the matter until in April, 1885, at which time the stones still remained as. placed by Fox. The point where these obstructions were placed was on a hill. During the week prior to the 25th day of January, 1885, there was a fall of snow succeeded by rain. These stones blocked up the gutter on the side of the highway and caused the water to flow across the same, so that on the 25th day of January, 1885, ice had formed across the traveled part of said road and made the same to slope to the opposite side and to a picket fence. The road between the obstruction (the stones aforesaid), and said picket fence was sixteen feet wide.
    On the 25th day of January, 1885, the plaintiff was passing over that part of said highway which was so obstructed, driving a horse attached to a wagon in which plaintiff and her sister were riding. As she was passing the point above-mentioned her horse was started at these stones in the gutter, and shied from them, the wagon slipped sideways or slued on the ice and struck the picket fence which frightened the horse and he jumped ahead and the wagon hit a tree a few feet away, a wheel of the wagon was broken; the plaintiff was thrown to the ground, and seriously injured; the horse got away and the wagon was broken in pieces.
    
      W. A. Hunt, for app’lt; Smith Lent, for resp’t.
   Barnard, P. J.

There was no proof of negligence upon the part of the town officers which can be said to have been the proximate cause of the accident. One Fox built a fence upon the line of the highway according to a survey. The survey brought the line further into the road than the old fence indicated, but is upon the line of the road as originally laid out.” Some stones of the ordinary size and appearance were placed on the side of the road and outside of the traveled part to be used in the wall. The plaintiff in driving along the road was not inconvenienced by the stones; had no difficulty in passing, but her horse shied and threw the wagon against the fence. The theory of the plaintiff is that the horse was frightened by the stones on the side of the road. This is not a thing which the best of attention can guard against. The finding in respect to them is "that they were ordinary stones, such as are used to build stone walls, and had nothing peculiar or strange about them.”

The referee is, therefore, right in his finding that no negligence was proven.

Judgment affirmed, with costs.

Pratt, J., concurs.

Dykman, J.

(dissenting) The legislature has relieved the commissioners of highways of this state from liability for damages to persons and property by reason of defective highways or bridges, and substituted the liability of the towns for such damages in cases in which such commissioners were formerly responsible. Chapter 'TOO, Laws of 1881.

This law is in allignment with the modem legislation which has invested the towns in this state with many of the attributes of municipal corporations. It substitutes the public purse for the personal liability of the highway commissioners, and furnishes the additional guarantee of vigilance which the responsibility of a corporation usually affords.

This action was commenced and prosecuted under that law for the recovery of damages sustained by the plaintiff by reason of the defective condition of one of the highways of the town of Ossining.

The cause was tried before a referee and the proof disclosed a dangerous obstruction in the highway at the time and place of the accident.

Large stones had been placed in the gutter or water-way on the side of the road, and notice of the fact had been conveyed to the highway commissioners, and their failure and neglect to remove the same was destitute of excuse or palliation. If their vigilance and activity had been in corn-mensuration with their duty the accident would have been obviated and the town protected. Their official duties involved care and examination to prevent the highways in their town from falling into a state of dilapidation and danger, so that even a want of knowledge of deficiencies and obstruction is not of itself an excuse for failure to repair: Cousins v. Carncross, 21 Week. Dig., 435.

In this case the commissioners of highways were in possession of knowledge of the full extent of the obstruction, and had exerted only sufficient activity to notify the wrong doer to remove the obstructions within sixty days, and their negligence leaves them without excuse.

Their plea of want of funds is also insufficient for their justification. Chapter 442 of the Session Laws of 1865, makes it lawful for the commissioners of highways of the town, with the consent of the board of town auditors of the town, to cause the removal of the obstruction and the reparation of the highway, even though the requisite expenditure of money exceeded the sum authorized to be raised in the town for such purposes.

It became the duty of the commissioners, therefore, immediately upon the receipt of knowledge of the encroachment, instead of serving a notice and retiring to rest for sixty days to secure the consent of the town auditors of their town and remove the obstructions, and as their failure in diligence would have rendered them liable personally before the new statute imposing liability upon towns in such, cases, so their negligence, in that respect, now imposes liability upon the town under that statute. Warren v. Clement, 24 Hun, 412.

It appeared from the proof that the unlawful obstruction of the highway was the cause of the accident which resulted in the injury to the plaintiff, of which she complained in this action. •

The judgment should be reversed, the order of reference vacated and a new trial granted at the circuit, with costs to abide the event.  