
    Henry R. Benson, Respondent, v. Hudson River Water Power Company, Appellant.
    
      Negligence — duty, of a company engaged in constructing a dam over a river, the approach, to which intercepts a highway—•use by a man on horseback of a road built by the company for its own convenience on the dam — injury from the horse being frightened by steam escaping from a pipe laid under such road.
    
    In an action brought to recover damages for personal injuries it appeared that the defendant corporation was, at the time the accident happened, engaged in constructing a dam across the Hudson river; that in joining its dam to the river bank the defendant intercepted an okl highway and for the convenience of travelers built a new road around the obstruction; that, in order to facilitate its own work, it built a road upon the dam which was only sufficiently wide to permit the passage of loaded wagons; that portable and stationary steam engines were stationed near and adjacent to this road, and that during working hours this road was the scene of great bustle, noise and confusion; that an iron steam pipe, which was a necessary appliance in the conduct of the defendant’s business, crossed the highway, at a depth-of tenor twelve inches below the surface; that the pipe was not connected with any other pipes under the road, but was connected with a similar pipe at a point eight feet outside the road-.
    It further appeared that the defendant for its own convenience connected this road upon the dam with the old highway, and that travelers upon the old highway sometimes iis.ed the road which the defendant had built for its convenience. It did not appear that any one was expressly invited or expressly forbidden to pass over the defendant’s road or dam. .
    On the day of the accident the plaintiff, who was familiar with the situation, attempted to pass on horseback along the road built upon the dam when the defendant’s works were in full operation. He testified that as he approached the point where the steam pipe crossed under the road a jet of steam gushed from the pipe into the center of the road, frightening his horse and causing the plaintiff to fall off and sustain injuries.
    There was no proof of any similar occurrence or of any defect either in construction or in the pipe known to the defendant, and no proof of knowledge on the part of the defendant that any danger of this nature was to be apprehended. Held, that it was a question for the" jury whether the defendant had not extended an implied invitation to travelers upon the old highway to use the road constructed by it over the dam, and that if the jury should find that there was such an implied invitation, the defendant was chargeable with the duty to exercise reasonable prudence and care;
    That it was error to submit the case to the jury under instructions that they had a right to find that the defendant was negligent in not forestalling accidents resulting from a jet of steam rising for the first time between the wagon " tracks;
    That the court erred in refusing to charge that “the pipe not being in or across a public highway, the plaintiff, was prosecuting its work upon its own premises in the exercise of a legal right,” as such refusal conveyed .to the jury the implication that the defendant was a trespasser in running the pipe across the road;
    That it was also error for the court to refuse to charge, “The defendant had a right to use the premises for the purposes which it was doing. The property being in such condition as to plainly indicate that the public right of use was interrupted, the obligation of the defendant was different from what it would have been had the pipe been in a public street,” as the refusal indicated to the jury that the road was, so far as the plaintiff was concerned, to be deemed a public highway, and that the defendant was a trespasser in placing the steam pipe under and across it;
    That there was no evidence presented from which the jury had a right to find a lack of reasonable prudence and care on the part of the defendant, and that a verdict should have been directed dismissing the complaint upon the merits.
    Appeal by the defendant, the Hudson River Water Power Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 8th day of June, 1901, upon the verdict of a jury for $450, and also from an order bearing date the 4th day of June, 1901, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    The plaintiff was thrown from a horse he was riding, and, as the jury found, was injured by the fall. At the time he was thrown he was riding over a road constructed by defendant on its own lands to facilitate the work it was prosecuting in building a stone dam across the Hudson river. The road ran over and along the stone dam so being constructed, and was only sufficiently wide to permit the passage of loaded wagons. It was in constant use by defendant, who had some fifty teams hauling materials to be used on the dam; piles of dirt were on each side of the roadbed; derricks were in use lifting and swinging material near by or over the road ; steam portable and stationary engines were stationed near by and adjacent to this road. Steam pipes from these engines emitted steam at all times during working hours; steam -whistles were, used for signals; and the confusion and bustle attending a great work was apparent to every one approaching to pass over this roadway. From one engine an iron steam pipe an inch in diameter crossed under the road buried some ten or twelve inches, covered with manure, then with plank and sand. Under the roadbed the pipe was solid, that is, there was no union of pipes under the dirt across the road, and some eight feet from the road the pipe was joined by a union to another pipe of the same dimension. By the side of the road next, to the engine building was an upright exhaust pipe which emitted steam whenever the engine was working. The steam pipe which crossed the road was a necessary and useful appliance in the conduct of the defendant’s business. The defendant in joining its dam to the bank cut across an old highway. For its own convenience the defendant connected this road, upon its own premises with the old highway, both above and below the point where the old highway was obstructed. The defendant also made a new road to go around this obstructed place for the convenience of the traveling public. This new road was longer, left the old highway a mile or so below the point of obstruction and came back a half mile or so above the point. Travelers along the old highway sometimes, went by way of the road built for defendant’s convenience. It does not appear that any one was expressly invited or expressly forbidden, to pass over defendant’s road and dam.
    
      Henry W. Williams and Edgar T. Brackett, for the appellant.
    
      Joseph A. Kellogg and J. Edward Singleton, for the respondent.
   Kellogg, J.:

Under the proofs in this case, I think it was a question for the jury whether there was not an implied invitation to travelers along the old highway to pass around the obstruction therein over the narrow roadway constructed by defendant for its own convenience; and the rule which measures liability in cases where such invitation is given must apply if the jury should find that there was the implied invitation. That rule is reasonable prudence and care. (Larkin v. O’Neill, 119 N. Y. 221; Flynn v. Central R. R. Co., 142 id. 439 ; Hart v. Grennell, 122 id. 371.) What is reasonable prudence and care is to be determined by the facts and circumstances of each separate case. In the case before us it was obvious to every one approaching to pass over the roadway that the passage was unsafe. It was obvious that it was not a highway; that it was narrow and ran through defendant’s works; that heaps of earth existed there ; derricks and steam engines were in use iii close proximity to this road ; that there was more or less noise and confusion all about — the necessary accompaniment of the employment of a large number of men and teams, steam engines and machinery. All these obstructions and obvious perils were a part of the surroundings, and the defendant could not be held to be negligent in any duty towards a traveler by not removing these obstructions to safe travel and making the perils' less. The defendant was prosecuting its work, as it had a right to do. The traveler must surmount the difficulties if lie would pass that way. The risk from things obvious and the dangers to himself, his team or horse which might be reasonably anticipated in passing over this road, were all assumed by the traveler.

The plaintiff, familiar with these surroundings,, obstacles and dangers, attempted to pass along this road on horseback in the daytime when the works were in full operation. As he came along in the vicinity of the spot where the steam pipe from one of the engines crossed under the road he says : I believe that at the time I was working for defendant I went by this building and the boiler and hoister were in operation and this pipe laid across the road as it did when I was hurt. * * * There was not more than one traveled track where I fell off. There was only room enough for one team ; just one track of a wagon there. That track was pretty close to the buildings. * * *' I was" in the track at the time. I was in the road. I suppose that is what you call the track. * *' * ■ This steam "enveloped me; it came from the pipe. * * * I know what part of the pipe it came from. It came out from the pipe in the track ; in the road. I saw it when it came up; it came in a gush in my face. Right between the tracks in "the highway; there is only one track there. There is.a track for each wheel. I will swear the steam came out of the pipe right up in the road. This was a pipe they used for a syphon pipe to force the water up in the barrel for the injector to take it.” The steam so coming from the pipe plaintiff says frightened his horse and he fell off. The plaintiff is the only witness of the accident, and, as he states here just how it happened, it would seem that the sole cause of the horse’s fright was a jet of steam from a steam pipe buried out of sight in the road. There is no explanation in the testimony as to how this steam jet found its way up through between the wagon tracks in the center of the road. The only theory possible is that there was a break in the pipe under the road. It was not shown that steam was ever known to come from that spot before. The pipe Was subsequently uncovered and found to be unbroken and perfect. The jury was instructed that defendant had a right to- run its pipe across the road in this way, and had a right also to use it in the manner it was used. Without doubt this was a correct instruction, for this was not a-highway and defendant was not a trespasser in using its own property for its own purposes. There was no evidence" of any fault in construction or any knowledge in defends ant of any defect in the pipe from which at this point in the center of the road a jet of steam might have been foreseen or danger therefrom apprehended. This, therefore, disposes of the charge of negligence on defendant’s part. There is no proof of failure on the part of defendant in the exercise of reasonable prudence and care. One witness (a brother of plaintiff) testified to having seen steam escaping from some leaky unions on the pipe outside of the road, both before and after the accident. It was proven that the nearest of these unions was some eight feet beyond the outer side of the road, and the same witness says, “I never saw any horses get frightened at this steam escaping.” The court instructed the jury that they had no> right to charge defendant with negligence in this case because of any escaping steam outside of the road, and in this we think the learned trial court was right. He says, in explanation of his general charge: “ I told the jury to consider if the beaten track was substituted, and if the escape was at the side, defendant is not liable for it.” So it remained only for the jury to predicate negligence upon the fact that a jet of steam came up from between the wheel tracks in the road; and as we have seen that there was no proof that steam ever came up in that way before, and there was no proof of defect either in construction or in the pipe known to the defendant, and no proof of knowledge of any danger of this nature to be apprehended, it was error to submit the case to the jury with instruction that they had a right to find defendant negligent in not forestalling accident from a jet of steam rising for the first time between the wagon tracks.

The court was asked to charge the jury as follows, that “the pipe not being in or across a public highway, the plaintiff was prosecuting its work upon its own premises in the exercise of a legal right.” This request the court refused. This, we think, was error. The converse of that proposition carries the implication to the jury that defendant was a trespasser in running this pipe across this road — as no doubt it would have been had the road been a public highway — and, being a trespasser, it would have been unnecessary to prove negligence. That the jury might have so understood the rule of liability to be is apparent from the request which followed, viz.: “ The defendant had a right to use the premises for the purposes which it was doing. The property being in such condition as to plainly indicate that the public right of use was interrupted, the obligation of the defendant was different from what it would, have been had the pipe been in a public street.” This request was refused. This refusal plainly declared to the jury that this road was, so far as plaintiff was concerned, to be deemed a public highway and the defendant was a trespasser in running a steam pipe under and across it, and, therefore, liable for any injury to plaintiff resulting therefrom. That this was error is too plain for ai-gument.

We think, aside from these errors in, the charge, that there was no evidence whatever presented from which a jury had a right to find a lack of reasonable prudence and care on the part of defendant, and a verdict should have been directed dismissing the complaint on the merits.

The ¡judgment should be reversed upon the law and the facts and a new trial granted, with costs to appellant to abide the event.

All concurred ; Smith, J., in result.

Judgment and order reversed and néw trial granted, with costs to appellant to abide event.  