
    Henry W. Embler, Resp’t, v. The Town of Wallkill, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 15, 1892.)
    
    1. Negligence—Highways.
    Plaintiff, while riding on a load of hay along one of defendant’s highways with his hack to the driver, was swept to the ground by the limb of an overhanging apple tree and injured. Plaintiff had occasionally travelled this highway but never with a load of hay, and never had had occasion to observe how low the branches hung or how far over the beaten track they extended. Held, that whether plaintiff was guilty of contributory negligence was a question for the jury.
    
      3. Same—Parties.
    After the commissioners of the town of Wallkill were elected, the city of Middletown was incorporated embracing a part of said town. Held, that said city was not a necessary party defendant in an action against the town for the neglect of the commissioners.
    (Haight and Landón, JJ., dissent.)
    Appeal from a judgment of the general term of the supreme •court of the 'second judicial department, affirming a judgment •entered bn a verdict.
    
      William F. O'Neill, for resp’t; William Vanamee, for app’lt
    
      
       Affirming 32 St. Rep., 700.
    
   Follett, Ch. J.

The action was brought to recover damages for personal injuries sustained by being swept from a load of hay to the ground by the limbs of an apple tree which overhung the public highway extending from the village of Circleville, in the town of Wallkill, to the city of Middletown, formerly part of-the -same town. Circleville is about five miles northerly of the city of Middletown, and they are connected by this highway, which is one of the principal ones leading to and from the city. February 20, 1889, the plaintiff was drawing a load of hay from Circleville to Middletown by a team driven by Emmett Travis. The day was •cold, the highway icy, rough with deep wagon ruts and narrow at the place of the accident. About a mile south of Circleville there was an old apple tree, the trunk of which stood from eight to thirteen feet from the west side of the travelled track. The plaintiff was riding on the right hand side of the load with his back to the driver when he was brought against a limb of the tree. One of the highway commissioners testified that the limb by which the plaintiff was struck was but four feet from the center of the road and that it was but seven feet from the center of’the road to the ditch on the east or opposite side of the highway.

At the close of the plaintiff’s case the defendant moved for a non-suit on the sole ground that the plaintiff and his driver, by their negligence, contributed to the injury. The motion was denied and the defendant excepted. At the close of the evidence this motion was renewed upon the same ground and upon the further ground that the town of Wallkill was not solely liable, for the damages, which motion was denied and the defendant excepted. In discussing the question whether the commissioners of highways-were guilty of negligence, the court said: “ Notice must be proven of the existence of the obstruction a sufficient length of time from which a jury can say a commissioner ought to have. known it. Now it is pothing of any consequence that thousands passed there without injury. If this obstruction existed so long that a vigilant officer should have known of its existence, they are liable because they didn’t know. They should have known as public officers if it existed so long that a jury could say to them, ‘You should, have known it.’ ” -

At the close of the charge, defendant’s counsel asked the court to instruct the jury “ that the jury have a right to take into consideration the circumstance that people driving on' loads of hay had passed under this tree without difficulty,” in determining whether there was sufficient to charge the commissioners with notice of the alleged defect. To this request the court replied: “ It might be some evidence.” Defendant’s counsel also asked., the court to charge that the' jury, have a right to take into consideration the circumstance that no complaint was made to the-commissioners in determining whether they were charged with notice of the alleged defect. The court replied: “Yes, I will charge that.” The counsel then excepted to the sentence, “Now it is nothing of any consequence that thousands passed there without injury.” This remark was made while discussing the negligence of the commissioners, and the court very clearly gave to the-fact that many had passed the tree without injury all of the probative force that it was .entitled to on this' issue. Whether the-evidence of negligence on the part of the commissioners was sufficient to authorize the submission of the question of' their negligence to the jury is not presented by any exception. The only-question presented by this record is whether the plaintiff, by his-own negligence, or by that of his driver, contributed to the accident.

The defendant now insists that the tree having stood for so-many years”in this position, with its limbs overhanging a portion at least of the traveled part of the highway, that it was contributory negligence on the part of the plaintiff not to have known of it and avoided it. The record shows that the plaintiff had occasionally traveled this highway, but never before with a load of hay, and he testified that he never had had occasion to observe how low the branches hung or-how far over the beaten track they extended. The defendant has three commissioners of highways,, all of whom gave evidence to exculpate themselves from the charge of negligence. Daniel W. Shaw testified that he had been commissioner for ten years or over, lived within a mile and a half of this tree, but never noticed that its branches overhung the road. Charles E. Gardner testified that be was one of the commissioners at the time of the accident and had been for twelve years, but had never known of any difficulty about the treé. Henry W. Dunning, the third commissioner, testified that he had been in office six years and' did riot know that any person had difficulty in passing the tree with loads of hay. Notwithstanding this evidence that danger was not obvious to those whose duty it was to see and guard travelers against it, the defendant insists that the danger was so apparent that it should be held as a matter of law that the plaintiff and his driver were guilty of contributory negligence in not seeing and avoiding it, and that it was error to submit to the jury the question of contributory negligence. The position that whether the plaintiff and his driver by their negligence contributed to the injury was a question, of law for the court and not a question of fact for the jury, cannot be sustained.

The point is made that the city of Middletown should have been joined as a party defendant. June 9, 1888, chap. 535, Laws 1888, the city of Middletown was incorporated. Before that ■date the town of Wallkill embraced the territory which at the time of the accident was, and since has been, within the limits of the city. Before the act incorporating the city was passed the three highway commissioners, for whose negligence the town is sought to be held liable, were elected by the electors of the town,, including those who resided within the present limits of the city.

It is ' urged that because the electors who resided within the territory which now forms part of the city participated in the ■election of the three commissioners, that the city is jointly liable with the town for their neglect. This point is without foundation. At the time of the accident the defendant was duly incorporated and its limits have not since been changed and the town is liable for the neglect of its commissioners, no matter how they were chosen or appointed. They were the legal highway officers of the town and the fact that they were elected by voters not now voters of the town has no effect upon the liability of the defendant

The judgment should be affirmed, with costs.

All concur, except Haight and Landon,.JJ., dissenting.  