
    Arthur Snowden, Respondent, v. The Town of Somerset, Appellant.
    Negligence— injury to a.woman while alighting from a wagon which has run into a ditch opened across a town highway—tipping of a seat, of which she. took held,, causing her to fall — liability of the town.
    
    In an action brought to recover damages for the loss of the services of the plaintiff’s wife, it appeared that the commissioner of highways in the defendant town opened for repairs a sluiceway crossing a town highway; that at night the highway commissioner guarded the open sluiceway by placing tiles across the road; that about eight o’clock on a dark, rainy evening, while the open sluiceway was thus guarded, the plaintiff drove along the highway in a three-seated wagon with his wife and four children, his wife being seated on- the rear seat and some of the children on the middle seat; that the plaintiff, who had no knowledge of the open sluiceway or of the presence of the tiles, drove into the tiles and that the forward part of the wagon settled into the sluice-way stopping the wagon with a smash and jolt; that the plaintiff got out and held the horses, which were struggling; that his wife, after directing one son to go for a light, and seeing that the other children were taken from the wagon, attempted to alight; that she took hold of the middle seat, placing her foot upon the step of the wagon and that as she proceeded to alight the seat tipped and she was thrown into a ditch. The defendant contended that the sole cause of the injury was the tipping of the middle seat.
    
      Held, that the court having submitted to the jury under proper instructions the question whether the injury complained of was caused by the defendant’s negligence or by the act of the plaintiff’s wife in taking hold of the middle seat, a verdict in favor of the plaintiff should not. be disturbed;
    That the attempt of the plaintiff’s wife to alight was but a continuance of the action begun at the first appearance of danger, and that the danger was so imminent that she should not be held to that accuracy of judgment required of persons acting with knowledge of the situation "and with a full opportunity to exercise deliberate judgment.
    Appeal by the defendant, The Town of Somerset, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 9th day of February, 1903, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 9th day of February, 1903¿ denying the defendant’s motion for a new trial made upon the minutes.
    In August, 1897, the commissioner of highways of the town of Somerset opened a sluiceway in that town for repairs. The old sluiceway consisted of two rows of eighteen-inch tile, laid side by side across the highway. On the evening of August eighteenth the tile and loose dirt had all been removed from the sluiceway. The opening was twenty and twenty-three inches deép on the.wheel tracks, respectively, six feet wide, and extended across the traveled part of the highway. The highway commissioner placed five of the tile some distance south and five north of the excavation. They were placed diagonally across the highway so as to indicate that travelers were to take the west side of the road. At about eight o’clock in the evening plaintiff was driving, in a three-seated wagon with his wife and four children. The wife was seated on the rear seat, some of the children in the center seat. Plaintiff had no knowledge that the sluiceway was torn up or that there were tile placed on the roadway., The night was dark and at the time of .the accident a rain storm was in progress. Plaintiff could not see the tiles, and as he came to the point of the accident drove into the tiles, his horses went into and through the sluiceway and the forward part of the wagon settled into the sluiceway, stopping the wagon with" a smash and jolt. Plaintiff at once got out and held the horses, they,, as he says, being restive and the neck yoke up against their throats.
    Plaintiff’s wife attempted to alight after the children had all got out of the wagon, and in doing so placed her hand upon"the middle seat and was thrown into the ditch, sustaining the injuries complained of. .
    The plaintiff brought this action for loss of services of his wife, occasioned by the injuries received by her .as above stated, and upon the trial recovered a verdict of $2,000.
    From the judgment entered thereon, as well as from the order denying defendant’s motion for a new trial on the minutes, this appeal is brought.
    
      H. W. Rippey, George Raines and J. L. Sheldon, for the appellant.
    
      S. Wallace Dempsey, for the respondent.
   Stover, J.:

It was held in Snowden v. Town of Somerset (171 N. Y. 99), an action in favor of the wife of this plaintiff, based upon- the same accident as the one here shown, that the negligence of the defendant was a question of fact for the jury.

The contention of the defendant now is that the sole cause of the injury to plaintiff’s wife was the tipping of the seat on which she tried to support herself in alighting from the wagon at the time of the accident and while the horses attached.to the wagon were down in the sluiceway.

Mrs. Snowden testified that there was a crash and the horses went down. Plaintiff, her husband, jumped- out and the children got out one side of the wagon before Mrs. Snowden attempted to alight. Mrs. Snowden took hold of the seat in front of her, placed her foot upon the step of the wagon and as she attempted to alight the seat tipped and she was thrown into the ditch. As she says, “ I took hold of the seat, it tipped and I don’t remember what then. I remember taking hold of the middle seat, the seat in front of me. I remember of getting my foot on the step on the east side of the wagon. The next thing I remember was Willie came to me in the ditch. I didn’t know then ivhere I was but that was where I was.”

She also testified that she could not see the middle seat when she started to get out and did not know anything about its position, or whether it was out of place or not and that she could not see anything. At the time of Mrs. Snowden’s attempt to alight plaintiff was engaged with the horses, still attached to the wagon and, according to the evidence -of plaintiff and Mrs. Snowden, struggling.

The question of whether the injury complained of was caused by defendant’s negligence or the act of Mrs. Snowden in taking hold of the seat, was submitted to the jury under a correct instruction, and we think we should not disturb the finding. Mrs. Snowden was called upon to act in order to protect herself from what she might fairly expect to be serious injury resulting from-the struggle of the horses attached to a wagon in a dangerous situation. It cannot be said that in the brief interval in which the children were alighting, in which she retained a seat in the wagon without injury, the situation had changed and that she was in a position of safety. During this time (but a few moments at most) she was engaged in directing one son to go for a light and in seeing that the other children were taken from the wagon.' Her attempt to alight was but a continuance of action begun at the first appearance of. danger, viz., gaining a place of safety and escaping a danger from the excited horses. The situation called for prompt action; they were still in the dark, a rain storm in progress and an unknown situation as to their physical surroundings^ Even if the act under other circumstances might have been careless, it would seem that under those in this case it was but natural and not imprudent.. The danger was so imminent that she should not be held to that accuracy of judgment required when acting with knowledge of the situation and full opportunity to exercise deliberate judgment; '

As this is the only substantial error complained of on this appeal, if the above views are correct, the judgment should be affirmed.

All concurred.

Judgment and order affirmed., with costs.  