
    Martha A. Wallace, Respondent, v. Town of New Albion, Appellant.
    Fourth Department,
    July 9, 1907.
    Negligence—injury on highway — unguarded bridge approach — proximate cause—res gestee.
    The proximate cause of injuries received by á driver whose horse backed the wagon off. an unguarded approach to a highway bridge, is the absence of a guard, and . not the negligence of the highway commissioner ill removing a former guard.
    When, in an action to recover for injuries so sustained, both parties, disregarding the proximate cause of the accident, have by consent litigated the question whether a timber formerly on the bridge approach -was 'placed as a guard rail or ás a sidewalk, a statement made by tlie former .commissioner at the timé - he placed the timber that it was put there to keep people from running off the hank, is admissible as. part of the res gestee, although technically inadmissible ■ on the real issue.
    
      The question-as to whether the backing off the unguarded bridge approach could have been reasonably apprehended is not one of law, but should be left to the jury.
    McLennan, P. J., and Khüse, J., dissented. .
    . Appeal by the defendant, the Town of New Albion, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 12th day of November, 1906, upon the verdict of a jury for $5,000, and also' "from an order entered in said clerk’s office on the 8th day of October, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      J. M. Willson and W. S. Thrasher, for the appellant.
    
      D. E. Powell and M. B. Jewell, for the respondent.
   Williams, J.:

The judgment and order should be affirmed, with costs.

The action was brought to recover damages for negligence of defendant’s highway commissioner, resulting in injury to the plaintiff. The negligence alleged consisted in leaving the approach to a bridge unguarded. ' The plaintiff started to'drive across the bridge. Her horse, after going part way across, became frightened* stopped, refused to proceed further, and backed the wagon off the bridge and over the embankment constituting the approach to the bridge. There was clearly evidence sufficient to authorize the finding by the jury that the highway commissioner was guilty of negligence which caused the accident and injuries to the plaintiff, and the further finding, that the plaintiff was free from contributory negligence. We cannot-say that the verdict was contrary to the evidence, nor.' that it was for too. large an .amount of damages.

It is claimed, however, that errors were committed in the reception of evidence and in the charge, requiring the verdict to be set aside and a new trial granted.

" The real ground of negligence on the part of the commissioner to be considered and passed upon by the jury was the failure to have a guard or barrier along the side of the approach to the bridge, to prevent teams going off the embankment. It Appeared that when the bridge was repaired or rebuilt, six years before the accident, a timber was placed .there and remained until about six months before the accident, when it was removed by the commissioner and used in ■another part of the town. There was disagreement as to the reason for placing this timber upon the approach to the bridge originally, and what use was made of it while it remained there, whether it was designed and used as a guard or barrier or as a-sidewalk. Consicferable evidence- was given' upon this subject on both sides, and,among other things, a witness was permitted to state what the former commissioner,, who placed the timber there, said about it at that time, viz,,' that “ lie wanted a stick of timber brought there and put ■there so as to keep folks from running off the bank.” ' .

While the trial justice did state in his charge the ground of negligence, as leaving the approach to 'the bridge-unguarded at the time the accident occurred, still he, at times, wandered away, from this .ground and .talked about the negligence in removing the timber six months -before the accident, and getting further away from the real ground -of negligence, he charged the jury that if the purpose.of' putting the timber upon the approach to the bridge six years before .the accident and the use made .of-it while it lay. there was ,as a sidewalk ,and not a barrier to prevent'people-'from driving off the embankment, then plaintiff could not -recover,-it would end the lawsuit,. and tlieir verdict should be for the defepdaht. bFo exception was taken to these matters' contained in the charge by either side. It is hardly necessary to discuss the errors, thus committed. The only proximate cause of the accident, if any, was the dangerous condition of the approach at the time the accident occurred,- by reason of its-being allowed - to be unguarded,' and whether it was at that time so dangerous as to charge the town with liability by reason of the negligence of the commissioner was the question of fact for the jury. Even if the removal of the timber six months before the accident was a negligent act, stiff that was not the proximate ca,use of the accident. Itwus not the fact of such removal, but that there was no guard there when the accident occurred,, that was -the ■ proximate cause. It was not necessary the timber, should remain there. Any' other guard might have been placed there, before the accident, as the photographs show one was so placed after the accident occurred. The attention of the jury' should have beep kept to the'real-ground of negligence, which could be found to be. the proximate cause of the accident, and counsel should have been confined, in giving their evidence, to the same ground. But all hands appear to have agreed and assented to the manner in which the case was tried and submitted to the jury, except that the evidence of what the old commissioner said when he .placed the timber upon the approach, six years before the accident, was objected to by the defendant, and an exception was taken. And defendant also excepted to the refusal by the trial' justice to charge that the taking away of the timber six months before the accident was not the proximate cause of the injury, and the leaving of that question to the jury as one oí fact. As to this request and refusal, the counsel for appellant suggests it was error only because .the proximate cause was the backing of the' wagon over the slope, from a cause, for which the defendant was not liable. If this was the only error, then the charge was unobjectionable. As to the evidence objected to, while it was technically erroneous, it was given as to an issue that counsel seemed to have agreed to make and litigate, whether the timber was placed and used for a barrier or a sidewalk. The defendant claimed it was a sidewalk merely, put there for that, and used «for that. It may be said to have been proper to show the timber was put there, and that the. remark of the commissioner who put it there, at the time he did the act, may be regarded as á part of .the res gestee of the placing of the timber.

We do not agree with the defendant that this accident was, as matter of law, one that could not reasonably have been'apprehended or expected to occur. At most this question was one of fact for the jury, and was left for the jury to decide.

This is the second trial of this case. (See 107 App. Div. 172.) It seems to be a proper case for the recovery of a verdict, and we hardly think the verdict last obtained should be'set aside for. merely technical errors that very Likely resulted in no injury to the defendant.

Robson, J., concurred; Spring, J., concurred in result only; McLennan, P. J¡, and Reuse, J., dissented on the ground that reversible error was committed in receiving the declarations of the former, highway commissioner, and also upon the ground that the. absence of a barrier was not the proximate cause of the accident.

Judgment and order affirmed, with costs.  