
    Myrtie A. Halstead, Appellant, v. The Village of Warsaw, Respondent.
    
      Negligence—shying of ahorse at a steamroller left at night in a village street — action taken in an emergency —proximate and secondary causes.
    
    In an action brought to recover damages for injuries resulting from the alleged negligence of a village, it appeared that the plaintiff was driving with her husband in the evening in a buggy on one of the defendant’s streets, which was about three rods in width, when the horse became frightened and shied in . passing a steam roller some twenty feet long and ten feet high which had been used in improving the street and had been left covered with a blanket by the side of the street, taking up about one-third of its width. In an attempt to control the horse the bit broke, the horse became unmanageable, and the plaintiff, by direction of her husband, jumped from the rear of the buggy and sustained the injuries complained of. The horse, which was gentle, nine years old and had on a new harness, had shown some signs of fright in passing the roller on the morning of that day.
    
      Held, that the question of the defendant’s negligence should have been submitted to the jury;
    That the plaintiff was not, as a matter of law, precluded from recovering, if she failed to exercise the best judgment in the emergency in which she was placed.
    Where injuries are the result of two proximate causes, of which the primary one is attributable to the defendant, and the secondary one cannot be laid at the door of either party, the defendant is liable.
    Appeal by the plaintiff, Myrtie A. Halstead, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Wyoming on the 25th day of July, 1898, upon a nonsuit granted by the court at the close of the plaintiff’s evidence, after a trial before the court and a jury at the Wyoming Trial Term.
    The plaintiff was injured on the 14th of May, 1898. On the morning of that day she, with her husband, went to the Erie station in the village of Warsaw, leaving their horse and two-seated carriage in a barn near the station, and went away on the train. They returned to the depot at about nine o’clock in the evening and started toward home in their buggy. The authorities of the village of Warsaw had .been using a steam roller to crush stone and flag in leveling and improving the streets. The work had been carried on in the street leading to the Erie station, and, after the work was finished for the day, the roller was left by the side of the road, where it was standing as plaintiff’s husband drove down the road leading from .the business part of the village to the railroad station.
    This machine was about twenty feet long, ten feet high and eight feet in width, with a smoke stack and three rollers, was operated by steam in a horizontal boiler, and, at this time, was covered with a rubber blanket. The street was about three rods in width, and the roller left a space of about two rods for teams to pass. As the horse was opposite the roller, he suddenly shied and veered off ;• the husband, who was driving, pulled up on him; the bit broke, the horse became unmanageable, and the husband told the plaintiff to jump, which she did, and he himself then got out.at the rear of the buggy. The plaintiff was bruised and sprained by her fall. That morning the roller was in the street as the plaintiff and her husband, with two others, went towards the railroad station. The husband of the plaintiff and the ladies alighted from the wagon, and the plaintiff’s brother drove the horse past the road machine. The horse shied a trifle, but exhibited no great fright. The horse was gentle, about nine years of age, and the harness was new. The night the accident occurred was not dark. A nonsuit was granted at the close of plaintiff’s case.
    
      E. M. Bartlett and N. W. Evans, for the appellant.
    
      Michael L. Coleman, for the respondent.
   Spring, J.:

The nonsuit was error. The street was intended for the public, and, while the municipal authorities necessarily were entitled to its use to improve and repair it, they must exercise that use in a way to insure the safety of travelers so far as compatible with the temporary interference of those intrusted with its care. When work upon the street is suspended for the day, if there is any obstruction to its unrestricted use, then that obstruction should be guarded so it is not a menace to the traveler. If there is an excavation in the street, it must be protected by lights or barricades, to apprise the .wayfarer of danger. The jury might well say this machine would tend to frighten horses, and, if so, it was incumbent upon those having it in charge to see it was removed from the street when the work was completed for the day. It was left in a narrow street, taking up one-third of its width. It was a place where horses going to and from the railroad station to the evening train must necessarily pass.

In Eggleston v. Columbia Turnpike Road Co. (82 N. Y. 278) a pile of stones had been placed by the side of the road for use in repairing a bridge. Plaintiff’s horse was frightened by these stones while crossing the bridge, and jumped from the bridge injuring plaintiff and his wagon, and the Court of Appeals held that these facts justified a recovery against defendant.

In Tinker v. The New York, O. & W. R. R. Co. (71 Hun, 431) the defendant put two sticks of timber, each about ten feet in length and twenty inches square, by the side of the road, about ten feet from the traveled portion. The horse driven by plaintiff’s husband became alarmed at these logs, veered suddenly out of the road, throwing plaintiff from the carriage and inflicting injuries upon her.

A nonsuit was granted at the Circuit, which was reversed by the General Term. The court, in discussing the proposition, said: “An object in a public street which is of such a form or character that it is calculated to frighten horses of ordinary gentleness, is an obstruction in the nature of a nuisance, and anyone who so places or maintains it is ordinarily liable for the consequences likely to arise. * * *

Whether or not the timbers in question, by reason of their form and character, their situation near the traveled part of the highway and partially concealed in the ditch, were calculated to frighten horses of ordinary gentleness was, we think, a question for the jury. It was a matter for inference in regard to which there was room for fair difference of opinion among intelligent men.”

In Whitney v. Town of Ticonderoga (127 N. Y. 40) the horse of plaintiff was frightened by a road scraper in the highway and a recovery was sustained.

In the same line are Ring v. Cohoes (77 N. Y. 83); Mullen v. Village of Glens Falls (11 App. Div. 275); Wood Nuisances (§ 295).

It, therefore, seems quite well settled that if objects which have a tendency to frighten horses of Ordinary tractability are permitted to remain in the street, the municipality will be chargeable with negligence.

While there is no direct proof that this machine would scare horses, yet the description of the machine, its dimensions, appearance and location in the. street, coupled with the fact that this horse shied as it passed by the roller that morning, in the presence of those using it, made the defendant's negligente a question for the jury to determine.

It is urged that the injuries to the plaintiff were not the result of the fright of the horse, but was due to the broken bit and to her jumping from the vehicle. When the injuries are the result of two proximate causes, the primary one of which is attributable to the negligence of a municipality, and the secondary of which cannot be laid at the door of either party, the municipality is liable. (Phillips v. The New York Central & H. R. R. R. Co., 127 N. Y. 657; Ring v. Cohoes, supra; Ivory v. Town of Deerpark, 116 N. Y. 476, 486.)

The plaintiff was in a perilous situation, and, if she did not exercise the best of judgment in the emergency, it cannot be said, as matter of law, no recorery can be had. (Bucher v. New York Central & H. R. R. R. Co., 98 N. Y. 128; McClain v. Brooklyn City R. Co., 116 id. 459; Dyer v. Erie Railway Co., 71 id. 228, 235.)

The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and a new trial ordered, with costs to appellant to abide the event.  