
    DELOS RIDDLE, Appellant, v. THE VILLAGE OF WESTFIELD, Respondent.
    
      Highways — a defect in a street caused by the act of the corporation — no proof of actual notice is necessary.
    
    Delos Riddle was driving a horse along a village street when the horse sank into a soft place and was injured. It appeared that the village had laid a water-main through the street about a month before; that the ditch had been filled with loose earth not properly packed in, and it could be reasonably inferred that the surface of the street sank from this cause.
    In an action brought by Riddle against the village to recover the damages resulting from the injury to his horse;
    
      Held, that as the unsafe condition of the street was not caused by the act of another, hut by the village itself, it was not necessary that the plaintiff should prove-actual or constructive notice of the defect to the village in order to recover.
    Appeal by the plaintiff Delos Riddle from a judgment of the-Chautauqua County Court, entered in the office of the clerk of Chautauqua county on the 5th day of January, 1891, reversing-a judgment in favor of the plaintiff recovered in ,a Justice’s Court.
    
      8. W. Mason, for the appellant..
    
      H. O. Kingsbury, for the defendant, respondent.
   Macomber, J.:

At tbe trial, wbicb was bad before tbe justice of tbe peace and a, jury, tbe plaintiff recovered a judgment for fifteen dollars, tbe undisputed value of bis borse. While driving along tbe street tbe horse suddenly fell or sank into a soft place and there received such, injuries as to render him worthless.

Tbe learned county judge reversed tbe judgment of tbe Justice’s. Court upon tbe ground, that tbe plaintiff gave no evidence that tbe defendant’s trustees bad any knowledge or notice of the defective-highway, or that the defect had existed so long as that knowledge thereof might be inferred. There being, therefore, no notice to tbe village trastees, either actual or constructive, be was of tbe opinion that tbe recovery could not be sustained. The principle stated by tbe learned judge is, undoubtedly, correct, as is shown by tbe case of Pomfrey v. Village of Saratoga Springs (104 N. Y., 459). But there is an exception to tbe general rale, wbicb is as well defined and stable as tbe rule itself, and that is: That where tbe unsafe condition of the street is caused directly by tbe act of tbe corporation itself, or its agents, liability for injuries sustained attaches directly, and not through tbe doctrine of notice, either express or constructive. (Turner v. City of Newburgh, 109 N. Y., 301.)

We are disposed to think that this case comes within tbe exception to tbe rule, and that upon the evidence tbe plaintiff was entitled to have tbe jury say whether bis loss was ascribable to any omission of duty wbicb the defendant owed to him as one of the traveling public.

As a municipal corporation the defendant bad tbe care and management of tbe village streets. By its water commissioners tbe defendant had laid a water main through West Main street, adjacent to and so near tbe center of tbe street as to render it likely that a passing team might naturally come upon tbe surface of the ditch without fault of tbe driver. When passing along in tbe usual manner in wbicb such horses are accustomed to be driven, the’, plaintiffs horse slumped into tbe place of tbe ditch. Tbe question, before tbe jury was why did tbe borse go in there ? Was it through the fault of tbe defendant? The accident happened March 1,1890. Tbe water pipe bad been laid by the defendant’s agents about a, month or two before, and instead of properly packing the ground in the usual manner the ditch was filled with loose earth which would be liable to give way in the spring, as it did, in fact, in this instance. There is a suggestion made in the opinion of the learned county judge that the accident might have been caused by the bursting of the water pipe in the ditch. But we find no evidence to sustain such an hypothesis. The testimony, it is true, which the justice of the peace has sent up is meager and fragmentary, as is usual in appeals from that court; but enough, we think, appears to show that the jury was supported by evidence, and the proper inferences to be drawn therefrom in finding that the defendant so unskillfully covered the water-pipe trench as needlessly to jeopardize ' travelers.

On the whole, we think the judgment of the County Court should be reversed and that of the justice of the peace sustained.

Dwight, P. J., and Lewis, J., concurred.

Judgment of the County Court of Chautauqua county reversed and the judgment of justice of peace affirmed, with costs to the plaintiff of the appeals to the County Court and to this court.  