
    Andrew Madigan, an Infant, by James Madigan, His Guardian ad Litem, Respondent, v. The Town of Schaghticoke, Appellant.
    Third Department,
    March 8, 1911.
    Town—negligence—injury on highway—evidence—assessed valuation of defendant.
    In an action against a town to recover damages for personal injuries received because of alleged negligence of the highway commissioner in failing to repair a highway, it is error to allow the plaintiff to prove the assessed valuation of the defendant town. This, because the right of the plaintiff to recover does not depend upon the ability of the town to respond in damages in an action where only compensatory damages are recoverable.
    
      It seems, that the location and character of a highway and the extent of travel thereon may be placed before the jury in order that they may determine the reasonable state of repair in which the highway should have been maintained, for remote and little used highways need not be kept in the same state of repair as those much traveled.
    The error in admitting such evidence is not cured, if it could be, if the jury were not told that they must regard the evidence of the assessed valuation of the town as bearing only on the character of the highway.
    Kellogg, J., dissented.
    Appeal by the defendant, The Town of Schaghticoke, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bensselaer on the 22d day of March, 1909, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 2d day of April, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Arthur J. Case [John T. Norton and Charles 1. Webster of counsel], for the appellant.
    
      Thomas S. Fagan, for the respondent.
   Houghton, J.: •

The plaintiff recovered a substantial judgment for injuries claimed to have been received because of the negligence of the highway commissioner in failing to repair one of the highways of the defendant town.

During the progress of the trial the plaintiff was permitted, against the objection of the defendant, stated in various forms, to prove that the assessed valuation of the defendant was upwards of $2,000,000.

We are of opinion that the admission of this evidence was such error as requires a reversal of the judgment irrespective of the other questions raised or of the merits of the action.

If the defendant through its highway commissioner was negligent in not repairing the highway, and the plaintiff was free from contributory negligence, all he could recover would be simply compensation for his injuries. Such compensation he would be entitled to whether' the defendant was rich or poor, and whether it was amply able to respond in damages, or whether payment of them would work a hardship. The natural and probable effect upon a jury of proof that the defendant town was rich and its assessed valuation large would be to lead them to assume that any verdict, or a large verdict, would be little felt by the individual taxpayer and could be easily paid by the town at large. It is the province of a jury to inquire, not what the defendant can pay, but what the plaintiff ought to receive, and it is the rule in actions for a wrong where only compensation can be recovered that evidence of the wealth of the defendant and his ability to respond in damages is incompetent and presumably prejudicial. (Myers v. Malcolm, 6 Hill, 292 ; Moody v. Osgood, 50 Barb. 628; Alberti v. N. Y., L. E. & W. R. R. Co., 118 N. Y. 77: Hart v. Marsh, 61 Wis. 435; 4 Suth. Dam. § 1254; 2 Greenl. Ev. [5th ed.] § 269.)

At the time this evidence was introduced the defendant had proved that there were some ninety-five miles of highways in the town, and the learned trial court admitted the evidence upon the theory that it was material as showing the importance of the highway in question and the frequency of travel thereon and the character Of its abutting property, and the learned counsel for the respondent seeks to sustain the ruling upon those grounds and upon the authority of Booney v. Randolph (128 Mass. 580) ; Sanders v. Palmer (154 id. 475); Weeks v. Needham (156 id. 289), and O’Brien v. Woburn (184 id. 598). Those decisions only hold that proof of assessed valuation, in view of the Highway Law of that State, may be proved by the defendant. They do not hold that such evidence may be given by the plaintiff against the objection of the municipality, and we are not cited to nor have we been able to find any case so deciding. It must be admitted that logically, if a municipality can properly prove its poverty as an excuse for not keeping a highway in repair, a claimant ought to be permitted to show its wealth as a reason why there was no lack of means to keep its highways in proper condition.

Whether the Massachusetts rule is based upon the peculiar form of its own statute or upon general principle, we do not think it is in conformity with the decisions of our own State or that it should be adopted by us. Our own courts have been zealous in prohibit, ing testimony which would show the poverty or riches of either party to a litigation in an action for tort where compensatory damages only are recoverable, and they have repeatedly reversed judgments where the poverty of the plaintiff has been proven or that a family of children for example was dependent upon him for support. (Alberti v. N. Y., L. E. & W. R. R. Co., supra ; Lipp v. Otis Brothers & Co., 161 N. Y. 559; Mannion v. Hagan, 9 App. Div. 98 ; Schwanzer v. Brooklyn Heights R. R. Co., 18 id. 205 ; Purcell v. Duncan Co., 107 id. 501.)

The location and character of the highway and the extent of travel thereon are proper matters to place before a jury and for them to consider in determining the reasonable state of repair in which the highway should be maintained. It is not reasonable to say that a remote and little-used highway should be kept in the same state of repair that a much-used and much-traveled highway should be. But the state of repair in which the various classes of highways should be kept does not depend upon the poverty or wealth of the municipality. Mor should the amount of compensation given to one injured be governed by ability or inability to pay. The assessed valuation of the defendant town did not tend to cast any light upon whether the highway upon which the plaintiff was injured was much traveled or not. The town may have had much assessable property, but the amount of its assessment would have no tendency to disclose whether the road in question ran through a swamp and was little used or whether it was one of the main thoroughfares, nor would it disclose the character of its abutting property.

There was sharp controversy on the trial not only with respect to the existence of the hole in the road by reason of which the plaintiH claimed to have been injured, but also with respect to the plaintiff’s knowledge of it, and his contributory negligence in bringing the injury upon himself.

Although the grounds upon which the evidence was admitted were stated in the presence of the jury they were nowhere told in the charge that they must regard the evidence of the assessed valuation of the defendant town as bearing only upon the character of the highway. Even if the error could have been cured by such an admonition there was no attempt to give it. The injuries to the plaintiff were of a serious character, resulting in the loss of one of his legs, which necessarily excited the sympathy of the jury. The tendency of the proof of defendant’s wealth was to lead the minds of the jury to overlook the real questions for them to decide and to induce them to give the plaintiff a verdict because it could be so readily paid.

Our conclusion is that the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Kellogg-, J., dissenting.

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