
    Cornelius Ivory, Resp’t, v. The Town of Deerpark, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed November 26, 1889.)
    
    1. Towns—Liability for lack of barriers at side of road.
    Plaintiff, on a dark night, drove into an excavation which had existed at a curve in the road, about eleven feet from the beaten track, for eleven years before. There were no barriers. Held, that the fact that the exposed condition had continued there for upwards of ten years was sufficient to warrant the inference that the commissioners did know, or ought to have known, that it was dangerous to public travel, if such was its character.
    2. Same—Lack of funds—Where money to be spent.
    While it is true that the commissioners are to exercise their judgment as to where to expend their money, their discretion must be reasonably exercised.
    
      3. Same—Contributory negligence.
    Although the fact that the horses were beyond the control of the plaintiff may have been a proximate cause of the injury, it did not, provided plaintiff was free from fault, relieve the town from liability, if the injury resulted from the negligence of the commissioners.
    Appeal from judgment of the general term of the supreme court, in the second judicial department, affirming judgment entered on a verdict in favor of the plaintiff.
    
      Lewis E. Carr, for app’lt; John W. Lyon, for resp’t.
    
      
      
         Affirming 6 N. Y. State Rep., 2.
    
   Bradley, J.

The action was brought, pursuant to chapter 700 of Laws of 1881, to charge the defendant with liability, and to recover damages for personal injuries of the plaintiff, alleged to have been occasioned by the negligence of the highway commissioners of that town. The cause of the plaintiff’s complaint was, that the commissioners failed to provide any barrier along the highway, at the place in question, for the protection of travel, and that in consequence of such failure the plaintiff, in the evening of November 18, 1881, in driving along there in a wagon, fell into an excavation and was injured.

It was dark The plaintiff was not familiar with the road. He was on his way from Cuddebackville to Port Jervis, in the town of Deerpark, and in going southerly down a descent in the highway, the horses he was driving, instead of following the curve to the left in the beaten track, continued straight forward, and with the wagon, in which ¡the plaintiff was riding, went over the edge of the excavation and down about seven feet.

The main question upon the merits is, whether there was any evidence to support the conclusion that the injury so occasioned to the plaintiff was attributable to the negligence of the highway commissioners.

The road had been used as a highway for a great many years, although it does not appear to have been laid out as such in the manner provided by statute. But in 1848, the road having been used as a highway for twenty years, the commissioners sought to have it ascertained, described and entered of record in the town clerk’s office pursuant to the statute. 1 R. S., 501, § 1, sub. 3. They did make an order which was so recorded. The excavation into which the plaintiff was precipitated, was made in or about the year 1870, for the purposes of the construction of the Monticello & Port Jervis railroad along there. Prior to that there could have been no reasonable apprehension of danger at that point of the road to the public travel. The edge of the embankment so made by the cut was about eleven feet from the beaten track, between which and it there was no ditch and no barrier of any kind, but the surface was uninterruptedly continuous, and its smoothness substantially unbroken from one to the other. This had remained so from the time the excavation was made, which was about eleven years before that of the accident in question. The boundaries of the old road as used there prior to 1848 do not very clearly appear, although there was evidence tending to prove that there was a stone wall on either side, and that the one on the easterly side was between the beaten track and this cut, and that this wall was taken away in 1849 or 1850. And thereafter until the excavation was made for the railroad there had been no interrupting physical boundary between the beaten way and the canal beyond the place so excavated. It appears by the evidence that on the west side of the beaten roadway and twenty feet from the edge of the embankment, was, at the time in question, a ditch, and a few feet west of that were the remains of a stone wall, and five or six feet west of the old wall was a board fence. The beaten track was sixteen feet wide, and beyond, a short distance southerly from this place, the remains of old walls indicate that the boundaries had been about two rods apart.

The order before referred to, made by the commissioners in 1848, described a line by courses and distances from certain monuments, and declared it the centre of a road three rods in width, but where that line was located in reference to the beaten track does not appear by the evidence. The order could not have the effect to increase or change the width or location of the highway from what it was before. It could be effectual only as a description of the width as manifested by the permitted use for twenty years. People v. Judges, etc., 24 Wend., 491; Talmage v. Huntting, 29 N. Y., 447. The order itself has no material importance in this case.

The fact that this road had been used for the public travel many years, and had been recognized and treated by the constituted authorities of the town as a highway gives that character to it for the purposes of making the defendant responsible to a traveler upon it for injuries sustained by him in consequence of the negligence of the commissioners in failing to keep it in suitable condition and repair. Sewell v. City of Cohoes, 75 N. Y., 45.

If the situation was such as to render the travel upon the road at the place in question dangerous, and such danger within reasonable apprehension, the duty was with the commissioners to use the means available to them, for the purpose, to guard against the hazards to which the traveler was exposed. The question upon the trial therefore was whether the excavation was so near the wrought portion of the road as to render it dangerous to the public travel in view of the situation there. Jewhurst v. Syracuse, 108 N. Y., 303; 13 N. Y. State Rep., 623. It is presumable that people may travel on the highways in the night time when the beaten path is obscured from view. At the place in question there seems to have been nothing to indicate, in the darkness, the curvature of the road, or to render the driver of the team sensible of the departure from it before reaching the place of danger. There is no complaint that the sixteen feet track was not adequate width for travel The wrought portion of highways in rural sections usually embrace but a portion of the width within their limits.

The commissioners are required to use reasonable care only. They do not insure the traveler against injury. And what is such care depends upon circumstances. They are to be advised of dangerous conditions or to be chargeable with negligence in -not having notice of them before any liability arises. The jury were warranted in finding that they, or some of them, had been actually notified of the necessity of barriers to protect against danger persons traveling upon the road at' this place, and the fact that the exposed condition had continued there for upwards of ten years was sufficient to warrant the inference that they did know or ought to have known that it was dangerous to public travel, if such was its character in relation to the use of the road. The question was one of fact, and the conclusion was authorized by the evidence that it was the duty of the commissioners to relieve this part of the highway of the danger referred to, if they had the means to do it, and that in such event they were chargeable with negligence.

In the cases of Hubbell v. City of Yonkers, 104 N. Y., 484 ; 5 N. Y. State Rep., 730, Monk v. Town of New Utrecht, 104 N. Y., 552 ; 6 N. Y. State Rep., 484, the streets upon embankments were broad, and at the boundaries were gutters, curbstones and elevated sidewalks. Thus guarded there was no occasion for apprehension that travelers under any ordinary circumstances would get out of the street and over the embankments. In the present case there seems to have been no surface change or any interruption to warn the driver of the passage of his team or wagon from the beaten pathway until he went over the adjacent embankment. But it is -said that'the commissioners had no funds which they were required to use for the protection of travel in that portion of the highway, because the work to which they should be applied was matter within the discretion of the commissioners, and that they used the money elsewhere. It is true they are to exercise their judgment in that respect, but their discretion must be reasonably exercised, else they may rest their omissions to do that, of trifling* expense, which is essentially important for the safety of travel, because they may conclude or may have determined to otherwise expend the money, and thus, furnish an excusable defense against liability in almost all cases.

The conclusion was not required that the means could not be obtained by those officers to make the necessary improvement at the place in question. The statute provides the means for raising annually for the use of the highway commissioners of each town the sum of $1,000. 1 R. S. 503, § 4; Laws 1857, ch. 615. Also through the action of the board of supervisors additional money may be borrowed on the credit of the town to repair roads and bridges within it. Laws 1869, ch. 855; amended, Laws 1874, ch. 260.

Evidence was given on the subject of funds and it appeared by the reports of the commissioners made at the close of nearly every year between 1870 and 1881, the latter inclusive, that there were moneys in their hands or under their control from those received in the preceding year and that some of the years money was borrowed pursuant to the statute referred to for specific purposes. While there was some evidence to the effect that the moneys thus reported were appropriated the conclusion was warranted that they had funds with which to do this work or may have procured them for the purpose, the expense of which would have been only twenty-five dollars. In their applications to cause loans to he made •on the credit of the town, no request was made for money for this work. There was no error in the reception in evidence of the record of the order made by the commissioners in 1848. It purported to ascertain and describe for record a road which had been used by the public for twenty years. That purpose of the order was within the provision of the statute. And nothing appears upon the face of the order to show that it did more than to describe such an old road nor had it then appeared to the contrary. It is not essential to its admissibility that the order be sufficient in itself to establish the fact or to show power to make it. Whether that were so or not might properly be the subject of evidence aliunde. Miller v. Brown, 56 N. Y., 383. The fact that the authority of the commissioners to make the order was not supported by the evidence subsequently introduced at the trial went only to the effect of the order as evidence. And upon that subject the court charged the jury that if the commissioners in making the order included more than was embraced in the old road it was entirely void. One of the commissioners who was well acquainted with the town was asked: “What is its character as to the necessity for highway labor ? ” And it is contended that ■the court erred in sustaining the plaintiff’s objection to it.

It was competent for the defendant to prove the extent and situation of the highways of the town with a view to represent the demand upon it for the use of funds during the period in question. But this necessity can properly be proved only by facts for the consideration of the jury so far as applicable to that inquiry. The proposed question called for the mere conclusion of the witness instead of the facts bearing upon it.

It was not legitimately the subject of the opinion of the witness, and, therefore, the exception was not well taken. And the same may be said of the exclusion <?f the answer of a question to another witness calling for his opinion of the comparative danger of this and another place on a highway of the town. The question of the contributory negligence of the plaintiff was one of fact for the determination of the jury, and it was properly submitted to them. There would not necessarily have been any imputation of negligence of the plaintiff, in the proposition, if so found, that the horses were running away or were beyond his control, and therefore there was no error in the refusal of the court to charge the jury that in such case unless the jury could say from the evidence that the accident would have occurred had the horses been going at an ordinary rate of speed or were under control, the defendant was entitled to a verdict. While in case the horses were beyond the control of the plaintiff such fact may have been a proximate cause of the injury, it did not, provided the plaintiff was free from fault, relieve the defendant from liability if the danger and injury of the plaintiff, as the consequence, resulted from the negligence of the highway commissioner. In that case there would be two proximate causes of the accident, and the responsibility would rest with the defendant if one of such causes was attributable to the ■default of the commissioners. Ring v. City of Cohoes, 77 N. Y., 83.

The manner the horses were driven or proceeded to the embankment was properly the subject of consideration by the jury as bearing upon the question of contributory negligence of the plaintiff, and was so treated by the court in the submission of that question to them. A careful examination of all the exceptions to the charge, and to the refusal to charge and all others taken at the trial, leads to the conclusion that none of them were well taken.

The judgment should be affirmed.

All concur.  