
    William Irving Scofield, Respondent, v. The Town of Poughkeepsie, Appellant.
    Second Department,
    December 23, 1907.
    Town — negligence — highways — collision with telephone pole at roadside— facts not showing negligence — proximate cause.
    Subject to reasonable, regulation by the highway commissioners, telephone companies may erect poles on the highway, and they are not a nuisance per se.
    
    One driving a vehicle on a stormy night who, in order to avoid an approaching automobile, pulls out of the road, with which he was perfectly familiar, and collides with a telephone pole which was set with other poles in line with the guardrail of a bridge and from one to twenty inches from the traveled portion of the highway, leaving a roadbed over nineteen feet wide at the place of the collision, cannot recover from the town for injuries received on the theory that the highway commissioners were negligent in allowing the poles to be so placed.
    The proximate cause of the accident was not the placing of the telephone poles, but the act of the automobile in forcing the plaintiff out of his course.
    Appeal by the defendant, The Town of Poughkeepsie, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 1st-day of February, 1906, upon the verdict of a jury for $1,000, and also from an. order entered in said clerk’s office on the 2d day of March, 1906,. denying the defendant’s motion for a new trial made upon the minutes. ■ •
    
      Allison Butts [John E. Mack with him on the brief], for the appellant..
    
      Frank B. Lown [Isaac E. Bingham with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff alleges as his cause of action that he was injured in ornear the Casper Creek bridge, on the New'York and Albany post road, in the town of Poughkeepsie, on the 15th day of July, 1904, while driving south from'Poughkeepsie, such injuries being caused by the defective and narrow condition of the highway and bridge in such place and the unsafe, negligent and improper manner in which the said highway was permitted to be,.remain and exist, and the narrowness of its position in that location, caused by obstructions allowed to be and remain in the" highway and bridge, which defective condition of the highway and bridge was caused by the neglect of the commissioners of highways of said town, and their neglect to properly care for the same and to remove obstructions therefrom as required by law. The evidence in support of these allegations shows that the New York and Albany post road runs through a woodland at the point where Casper creek crosses the same, and the location of the accident here involved; that there is a street surface railroad running along one side of this highway; that the creek runs partially parallel with the roadway near the bridge, and that pipe railings have been erected on either side of the bridge out for a considerable distance along the margin of the creek and the lowland adjacent to the stream. At the bridge proper the highway is considerably narrowed down, though it is in evidence that at the narrowest place, and at the point of the accident, there is a clear driveway of something over nineteen feet from the nearest rail of the street railroad, such driveway being clearly defined by a grass plat running between the railing above described and the driveway as worked and held out to the public for use. Two telephone companies, duly organized and acting under the laws of this State, had erected telephone poles at a distance of about three feet from the guardrail, and at distances of thirteen and seventeen feet respectively from the northerly abutment of the bridge, these poles being almost exactly in line with the guardrail or pole at the end of the bridge opposite" to the street surf ace-railroad, so that a man driving in the direction of Poughkeepsie and safely crossing the bridge, and straight ahead, would not come in contact with these poles, and there was a clear space of more than nineteen feet between them and the railroad on the opposite side of the way. The plaintiff was driving from Poughkeepsie°at about eleven o’clock in the evening. It was raining, with thunder and lightning, and a trolley car had stopped on the bridge to take down its trolley on account of the storm. As the plaintiff approached the bridge in this storm lie saw the lights.of an automobile approaching him from the south, or in the opposite direction from which he was going. The automobile appeared to be bearing down upon him, and lie pulled his horse to the side of- the highway, as he says, to avoid contact -with the machine,, and. his wagon collided with one of. these telephone poles,'throwing him óut and producing the injuries for which he seeks damages. There is-some evidence that he actually-collided with the automobile, but we accept the view which the jury must have,taken of the evidence, and assume the facts to be as stated above. The question is presented whether the highway commissioners were guilty of negligence in permitting these telephone poles to remain in the highway in the place in -which the companies had erected them under their charter from'the State.

The telephone - companies unquestionably had a right to erect their poles in the highway subject to the reasonable regulations of the highway commissioners, so the obstructions were not unlawful in the sense that would constitute them a nuisance from the mere fact that they were in the highway. The evidence shows clearly that originally these poles were-set.in the grass-plat at the side of the traveled way from one foot to twenty inches from the traveled portion ; that subsequently a rural4 free delivery box was placed upon one of these poles, and that.the delivery man, in driving up to deposit mail, had worn the grass away from in. front of these particular poles, -but that the grass plat 'defining the driveway was not otherwise disturbed; The plaintiff had driven over this way for nineteen years, and presumptively knew all about it, and the acci-' dent having occurred in a thunder storm, the question of the appear-, anees at that exact spot are not very material, except as going to show the situation as it must have appeared to the highway commissioners in. the discharge of their duties. Was it negligent for the commissioners not to have anticipated this accident, and to have guarded against. it by compelling the companies to remove these poles ? If it was, then there is scarcely a highway commissioner in the State who is not liable for like accidents, for similar situation's are to be found along almost every rural highway in the country. The poles were set well away from the highway as used ; they were in the highway-as it approached a bridge, well known to be narrower than the general way; they were in line with the guardrail as it passed along the end of the bridge; they.were.as conspicuous as any sign post or warning of their presence could well have been, and certainly as to one who was familiar with the situation, these poles would not have suggested a greater danger than was to be anticjpated from the abrupt angle of the guardrail as it turned in toward the narrow portion of the highway over this bridge. If the accident had occurred exactly at the bridge, and the plaintiff had collided with the angle of the guardrail, it could certainly not have been held that the highway commissioners were guilty of negligence in erecting such a railing, where they had left a perfectly clear way of over nineteen feet in a country road, and these telephone poles, erected by corporations duly authorized to use such highways for the purpose, did not, we think, present substantially more of an obstruction to the highway than was presented by this narrowing up of the bridge. It seems to us that if this situation had been viewed before the accident by men of average intelligence and caution, it would not have occurred to them that the situation was one of danger to the traveler using ordinary care in driving along a rural road, and this is the. test of the duty of the highway commissioners. They were not bound to anticipate that the plaintiff or others would meet a reckless automobilist on a dark and stormy night, and that they would be crowded out of the beaten path ; all that they were required to do- was to use reasonable care to see that the highways were reasonably safe for travel, and no one would question that this highway was reasonably safe if not told that this accident had happened and that the plaintiff had suffered injuries. This is not the place for citing authorities; it simply requires the application of the true rule of negligence, and tested by this rule, there was no question here for the jury, because, taking the plaintiff’s own version, the fact did not constitute actionable negligence as against the highway commissioners. If the telephone poles had not been where they were, it is quite as likely that the plaintiff would have been run against the bridge railing, only seventeen feet further along in the direction in which he was traveling, and the proximate cause of the accident was the automobile running the plaintiff out of his course, and not the negligence of the highway commissioners in not anticipating that this might occur.

The judgment and order appealed from should be reversed.

Jenks, Gaynor, Rich and Hiller, JJ., concurred.

Judgment and order reversed and new trial granted, costs to . abide the event.  