
    WOOD v. TOWN OF GILBOA.
    (Supreme Court, General Term, Third Department.
    February 13, 1894.).
    1. Highways—Liability for Defects.
    The action of highway commissioners in failing to erect barriers along a highway in dangerous places is not .of a judicial character, but the question as to whether the commissioners were negligent is for the jury.
    2. Same—Contributory Negligence.
    Whether plaintiff in an action for injuries alleged to have been caused by defective highway was guilty of contributory negligence in driving a colt on such highway is for the jury.
    Herrick, X, dissenting.
    Appeal from circuit court, Schoharie county.
    Action by Francisco Wood against the town of Gilboa to recover damages for alleged negligence of defendant in keeping a highway, whereby plaintiff was injured. From a judgment entered on a verdict in favor of plaintiff for $1,300 and $239.01 costs, defendant appeals. Affirmed.
    The accident is described in plaintiff’s claim as follows:
    On the 20th day of April, 1891, I was carefully driving with my horse and wagon along and upon the public highway in said town leading from what is known as “Church Hill” to Main street, in the village of Gilboa; and, when approaching the blacksmith shop and house situate on the northerly side of said highway, my horse became slightly frightened at some children coming around the corner of said shop and house, or at something else about said shop and house, when he suddenly slightly sheered towards the southerly side of said road, and halted, with his hind feet near the southerly side of the road, with his head looking towards the object that frightened him. When I spoke to him sharply, he made a sudden move towards the middle of said road, when the ground under' his hind feet gave way, and precipitated horse, wagon, and deponent down a steep embankment, being the southerly embankment of said road, a distance of about 15 feet, • injuring said horse, seriously frightening him, and ruining him for a safe and useful animal. * * ‘ * That said highway upon which said accident happened, as aforesaid, was and is, and for a great many years has been, one of the public highways of said town, under the charge and control of the commissioner of highways thereof. That at the point where said accident occurred, and for some distance each way therefrom, it was a dugway alongside of a bank, with a steep bank above the track ascending on the northerly side thereof, and descending on the southerly side thereof, very steep and precipitous, with a roadbed from bank to bank of only about 16% feet in width, and with a house and blacksmith shop thereon, as before stated. That said roadway, at the place of the accident, was quite a steep-incline, and somewhat curved. That said road had no guard or'other thing on the southerly side thereof to prevent anything from going off thereof, as it ought to have had, and was necessary to have to make it safe and convenient for the public to travel thereon. That the bank from said roadbed where the hind feet of said horse broke through, and for a space beyond the same each way, -was nearly perpendicular for about three feet down. That other people and horses and wagons had gone off from said road, and down said embankment, not far from the place where the accident happened to deponent; and such accident, and, by reason thereof, the road, being unsafe,, had become public talk, and was well known to the people of said town, and to the various highway commissioners thereof, as deponent is informed and believes true, and that in icy times people have been compelled to get out and lead their horses'over the same; and the general subject of the unsafety of the road, and that it ought to have a guard or railing of some kind to make it safe for public travel, has been publicly talked, canvassed, and understood, as deponent is informed and believes true. That it became and was the duty of the various highway commissioners of said town, and particularly of Peter Shafer, who is the present commissioner of said town, to place guards or railing along said highway, to make it safe for the public to travel, he and they well knowing that it had no such railing, and that it was unsafe; and he and they had highway money in their hands, as such commissioners, sufficient to make and place such railing thereon, and had the means to get such money, but negligently and carelessly omitted to place said guard or railing thereon.
    Argued'before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Gilbert & Andrus, (C. L. Andrus, of counsel,) for appellant.
    Krum & Grant, (Hobert Krum, of .counsel,) for respondent.
   PUTNAM, J.

Questions similar to those presented in this action have been so often passed upon that an opinion seems unnecessary. The case of Maxim v. Town of Champion, 50 Hun, 88, 4 N. Y. Supp. 515; Id., 119 N. Y. 626, 23 N. E. 1144, and many other authorities which might be cited, have established the doctrine that it is a question of fact for a jury whether a town is or is not negligent in failing to erect suitable railings along the side of a highway in dangerous places. That question was fairly and properly submitted to the jury in this case, and the verdict establishing the negligence of defendant cannot be disturbed. In Mayor v. Town of Champion it was also held that the action of the highway commissioners, in failing to erect, barriers in such a case, was not of a judicial character; and also the fact that the highway had been in the same condition for a long period, and that no previous accident had occurred, although proper evidence in the case, did not relieve the town of the charge of negligence. Hence the verdict of the'’jury, upon conflicting evidence' establishing the negligence of the town officers in omitting to erect barriers at the place in question, cannot be properly disturbed by us.

Appellant urges that the plaintiff was guilty of contributory negligence in driving a horse that he knew to be vicious and unmanageable. There was evidence in the case, however, from which the jury could infer that the horse was no more vicious and unmanageable than colts usually are. The question of fact in this regard was submitted to the jury by the court without objection by defendant, and the finding of the jury is conclusive.

The defendant also insists that, the accident being the result of two causes,—one the defective condition of the highway, and the other the conduct of plaintiff’s horse,—and the evidence not showing which cause produced the injury, the plaintiff must fail, under principles settled in Taylor v. City of Yonkers, 105 N. Y. 202, 11 N. E. 642, and kindred cases. We think this case is more like Ring v. City of Cohoes, 77 N. Y. 83; Kennedy v. Mayor, etc., 73 N. Y. 365; and Ivory v. Town of Deerpark, 116 N. Y. 477, 22 N. E. 1080. These latter authorities held that, where there is a defect in a highway, one whose horse became frightened, ran away, and became uncontrollable could recover, although the conduct of the horse was a proximate cause of the injury, if the negligence of the officers of the town was another proximate cause of such injury.

If the highway was in the same condition as it was at the time of the accident for many years prior thereto, notice of its unsafe condition to the officers of the town is presumed.

We have examined the exceptions taken on the trial to the rulings of the court, and think that none of them require a reversal of the judgment. The statements of the plaintiff after the accident, (which defendant insists were erroneously received in evidence,) as proved by witness Croswell and others, we think should be deemed mere exclamations of pain. They were made while his attendants were turning him "over or touching him, and, we think, were not incompetent under the cases. Roche v. Railroad Co., 105 N. Y. 294-297, 11 N. E. 630; Hagenlocher v. Railroad Co., 99 N. Y. 136, 1 N. E. 536. An examination of the testimony given on the trial, however, shows that if the above evidence was improperly received it did no harm, as the condition of plaintiff after the accident, and his pain and suffering, were clearly proved by other witnesses, who were not contradicted. The judgment should be affirmed, with costs.

MAYHAM, P. J., concurs. HERRICK, J., dissenting.  