
    Hyatt vs. The Trustees of the Village of Rondout.
    ■ In an action against the trustees of an incorporated village, to recover for injuries sustained by the plaintiff in consequence of a highway being out of repair, the defendants can not be allowed to prove that the condition of the highway in question was worse in some other places, and especially in those portions out of the village bounds, than it was at the place of the injury.
    •Where a statute imposes upon the trustees of a village, as commissioners of highways, the duty of keeping a bridge, or a highway, in repair, the duty extends not merely to the floor of the bridge, or the road bed of a highway, but to proper guards or railings on their sides or borders, when necessary for the safety or protection of the public.
    Where the trustees of a village are, by its charter, made commissioners of highways therein, if a road within the corporate limits is out of repair, and the trustees neglect to repair it, an absolute obligation and liability rest on them in regard thereto ; and for an injury sustained by an individual in consequence of their negligence the.corporation is liable.
    Although a statute provides, that the money raised by the trustees of a village by assessment, for highway labor, shall “ be expended under the direction of the board of trustees, in making and keeping in repair the highways, bridges and roads within the corporation, in such manner as they judge to be the most beneficial for the public,” the trustees can not be excused from making an indispensable repair on the ground that the expenditure was confided to their judicial discretion which can not be reviewed; at leas* not without conclusively showing that all the funds in their hands had been applied in the regular discharge of official duty. ■ ■
    Whether the place where an injury occurred required a guard or barrier, in order to the safety and protection of travelers; and whether the defendants . were guilty of actual negligence in not constructing'such guard or barrier, are questions proper to be submitted to the jury, in an action against the trustees of a village for negligence, and which it is their province to determine.
    If there is enough testimony to go to the jury upon those questions, their finding thereon, ór on the amount of damages, can not be disturbed. Commissioners of highways are not liable for the non-repair of highways within their jurisdiction if they have not the funds for that purpose, and are incapable of supplying themselves, by law, with such funds.
    But whatever may be the rule in regard to commissioners of highways in towns, a different and more stringent rule has been applied to corporations and the trustees of villages.
    Where it appeared in an action against a municipal corporation for neglecting to repair a road, that the needed repairs might have been effected for about the sum $50, and that the defendants had been provided, by tax, with $2800, and had expended from $2000 to $3000 ; held that it could not be said to have been conclusively shown that the defendants were without funds, but that there was evidence from which the possession of funds might be inferred.
    'IjTOTION for a new trial. This was an action brought by _JJL the plaintiff, Stephen Hyatt, against the defendants, the trustees of the village of Eondout, to recover for injuries, which the plaintiff alleges he had sustained, whilst traveling with a horse and wagon from Wilbur to Eondout, in consequence of the road being out of repair, such road being within the limits of the village of Eondout. The answer was simply a general denial. The cause was tried at the Ulster circuit on the 25th day of March, 1863, before Mr. Justice Peckham and a jury. . The facts of the case were as follows : The plaintiff is a manufacturer of cigars, residing at Newburgh. On the 5th day of April, 1861, the plaintiff, with a wagon loaded with cigars, tobacco and furs, was coming from Eddyville to Eondout. The road which he traveled was a great thoroughfare, and the only road between these two points, without going “ a long way around.” The distance between Bddyville and Bondout is about two and a half miles. When he started from Bddyville it was dark; before he reached Wilbur it began to rain; and when he reached the South Bondout ferry, it' was so dark he could not see at all. At the South Bondout ferry, and going towards Bondout, the road leads up a steep hill. About at the top of the hill, the road takes a sudden turn. At this point, on the upper side of the road is a high bank, and on the lower side also a steep precipitous bank, forty-one feet high, at the foot of which the Bondout creek flows. The rqad is directly on the edge of the bank, and there was no guard or fender there to prevent a wagon and horse from going, off. The plaintiff got safely up the hill, and partly round the turn, when his horse shied on account of some boatmen below the hill swinging lights,' backed, and went over “into the creek with load and all." The wagon was broken, the cigars wet and damaged, the plaintiff was himself precipitated into the water and injured, and the horse was also hurt. The spot of the accident was within the corporate limits of the village of Bondout, and the road at that point was from twelve to fourteen feet wide. The village was taxed for work upon that road. Bondout village had a population of between seven and eight thousand, and a guard at the point of the accident would have cost about $50. Defendants raised about $2800 highway tax in 1861, and expended from $2000 to $3000. The village of Bondout was duly incorporated by an act of the legislature of this state, passed April 4th, 1849. And in and by said act it was declared, “that the inhabitants residing therein, shall henceforth be a body eoip>orate and politic, by the name of “ the trustees of the village of Bondout." (Laws of 1849, p. 306.) By an act passed March 17, 1857, it was enacted as follows: “The village of Bondout shall be a separate highway district, and the trustees of said village shall have the powers, and discharge all the duties of commissioners of highways therein, All assessments for highway labor in said corporation shall be paid in money instead of labor, at the rate of fifty cents for each day’s work assessed, which assessment shall be made in the manner prescribed in the statutes concerning highways, by the board of trustees acting as commissioners of highways in said corporation, on or before the first day of June in each year; but the general exemption of farming land from said village tax by the act of incorporation shall not be construed to apply to highway taxand the said assessment shall be collected of the several persons so assessed, by the collector of the corporation, by virtue of a warrant, to be issued on or before the 1st day of July in each year, by the board of trustees or a majority of them, and to be paid over by him to the treasurer of the corporation, taking his receipt for the same, and making returns to the said board of trustees in the time prescribed by law; said money to be expended under the directions of the board of trustees in making and keeping in repair the highways, bridges and roads within the corporation in such manner as they judge it the most beneficial to the public.” (Laios of 1857, vol. 1, p. 243.)
    At the close of the plaintiff’s evidence, the defendants moved for a nonsuit upon the following grounds, which motion was renewed at the close of the case: 1. No proof that the road is a highway. 2. The plaintiff’s own negligence contributed to the injury. 3. Commissioners of Kingston have concurrent jurisdiction. 4. Width of wagon track or road way not prescribed by law. 5. No law requiring defendants to put up a guard. 6. No proof of funds in the defendants’ hands. 7. Expenditure of highway moneys submitted to the defendants’ judgment and discretion. The motion was denied.
    In submitting the cause to the jury, the court, among other things, directed them to pass upon the following questions, to wit •: “ Whether it was, or was not the duty of the defendants to put a guard at the point where the injury occurred—whether it was, or was not negligence in omitting to do so.” He further charged the juiy, “that it was a question of fact for them to decide whether the negligence of the plaintiff contributed to produce the injury, and if it did in any way, then the plaintiff could not recover.” He further charged that doubtless the defendants could have raised money enough to put a guard at that point, in addition to the other improvements, without greatly oppressing the inhabitants of the village. The defendants excepted to these portions of the charge as made, and also to various refusals to charge, viz: a refusal to charge that the defendants were not bound to put up a rail or guard; and a refusal to charge that the defendants were not liable if they raised a reasonable amount of money by highway tax, and expended it according to their best judgment.
    The jury found a verdict in favor of the plaintiff, for the sum of $125.
    
      T. R. Westbrook, for the plaintiff.
    
      S. L. Stebbins, for the defendants.
   Hogeboom, J.

The defendants offered to prove that the condition of the highway in question was worse in some other places, and especially those out of the village bounds, than it was at the place complained of. There is no ground upon which the admission of such evidence can be reasonably urged. If the defendants were more negligent elsewhere, it furnishes no reason for not holding them liable here. And if other authorities or public officers were more negligent than the defendants, it can not exempt the defendants from responsibility. Nor does it in any legitimate way tend to prove the plaintiff’s negligence. On the contrary, if in traveling over the two miles of highway, more exposed and dangerous than that where the injury occurred, the plaintiff passed with entire safety, the fair inference is that he must have exercised great caution. The' question of the plaintiff's negligence can not thus be determined by comparison, but by the facts occurring at the time of the accident. The evidence was properly rejected.

The only other points raised in the case may be ranged under the two general and ordinary heads, to wit: 1. Wore the defendants guilty of negligence or breach of duty producing the casualty. 2. Did the plaintiff’s negligence contribute to the result. I will consider the latter question first.

The question of the plaintiff’s negligence was fairly and properly submitted to the jury. It was a question for the jury. There was no such clear and decided evidence of his want of care as would have justified the court in nonsuiting him upon that ground. It is unnecessary to remark upon the evidence in detail, in this particular. I think no one can read it without being satisfied that it was one of those cases where in regard to the facts themselves and the proper inferences to be drawn from them in respect to this question, it was emphatically the province of the jury to decide.

The question of the defendants’ negligence or breach of duty depends upon other considerations.

1. Was the building, of a railing or guard at the place of the accident, if necessary for the safety of the public and of travelers, a’ duty resting upon the defendants, under their general obligation to keep highways in repair ?

2. Was such a duty absolute and complete under all circumstances, or did it depend upon the fact of the defendants being in funds for such purpose, or upon their judgment and discretion, or other reasons ?

3. Did the defendants in fact have such funds on hand, if that circumstance was necessary to be shown P

4. Do the facts of this particular case establish negligence or breach of duty on the part of the defendants so as to make them liable, or to make their liability a proper question to be submitted to the jury ?

1. By section 3, of chapter 115, of the laws of 1857, “ The village of Bondout shall be a separate highway district, and the trustees of said village shall have the powers and discharge all the duties of commissioners of highways therein.” By 1 R. S. 502, § T, it is made the duty of commissioners of highways “ to give directions for the repairing of the roads and bridges within their respective towns,” and “to cause the highways and the bridges which are or may be erected over streams intersecting highways, to be kept in repair.”

It would appear to be sufficiently obvious that the duty of keeping a bridge or a highway in repair extended not merely to the floor of the bridge or the road bed of a highway, but to proper guards or railing on their sides or borders, where necessary for the safety or protection of the public; but the point has been repeatedly adjudicated. (Palmer v. The Inhabitants of Andover, 2 Cush. 600. Hayden v. Inhabitants of Attleborough, 7 Gray, 338. Norris v. Litchfield, 35 N. H. Rep. 271.)

2. The question has been much discussed how far commissioners of highways are liable for the non-repair of highways within their jurisdiction, and it has been generally held that they are not so, if they have not the funds that purpose and are incapable of supplying themselves by law with such funds. (Bartlett v. Crozier, 17 John. 439. People v. Commissioners of Hudson, 7 Wend. 477. People v. Adsit, 2 Hill, 619. Barker v. Loomis, 6 id. 463. Smith v. Wright, 27 Barb. 621.) As a question of pleading, the cases are not decisive whether an averment of the possession of funds should be made in the complaint, leaving it to the defendants to set up the want of them in the answer, or not. Adsit v. Brady, (4 Hill, 630,) strongly intimates that the general allegation of neglect and breach of duty is sufficient, and that the commissioners are presumed to have the means of performing a duty with which the statute charges them; while Smith v. Wright, (27 Barb. 621,) holds that the complaint should contain a distinct averment of the possession of the requisite funds to make the repairs, and the want of it makes the complaint demurrable.

In the case now under consideration there is no such averment ; and there was no demurrer to the complaint. The answer is a general denial and does- .not set up the want of sufficient funds. And all the proof in the case was taken without objection, so far as this question is concerned, and nothing appears in the case in regard to it, except that on the motion for a nonsuit one of the grounds was that there is no proof that the defendants had any funds with which to make repairs or put up a guard; which ground the court overruled. .

But whatever may be the case in regard to commissioners of highways in towns, a different and more stringent rule appears to have been applied to corporations and the trustees of a village. In this case the defendants are “ the trustees of the village of Rondout,” and such .is the .corporate name of the village. “The inhabitants residing therein (in the village of Rondout) shall henceforth be a body corporate and politic by the name of the trustees of the village of Rondout.” (Laws of 1849, oh. 199, § 1.) It was therefore the corporation of the village of Rondout which was sued in this case.

Weet v. The Trustees of the Village of Brockport is a case in the- supreme court, reported in a note in 16 N. Y. Rep. 161. The opinion in that case concludes as follows, (pp. 172, 173:) “It follows from the preceding reasoning that if we regard the injury to the plaintiff as the result of mere neglect to keep the highways of the village in repair, the defendants would be responsible in this action, for such neglect, upon the ground that their acceptance of the franchise granted by their charter raised an implied undertaking or contract on their part to perform that duty, which upon the principles referred to, enures to the benefit of every individual interested in such performance. But it is unnecessary to revert to this doctrine to establish the responsibility of the defendants in this cause, for the reason that the injury to the plaintiff was not the result of a mere nonfeasance on the part of the defendants, hut was produced by their construction of the platform in question in such a manner as to constitute it a jmblic nuisance.” At page 170 the same judge says: “ It seems to have been the opinion of Justice Beardsley in the case of Wilson v. The Mayor of New York, (1 Nenio, 596,) and of Sandford, J. in Hutson v. The same, (5 Sandf. Rep. 289,) that municipal corporations are not liable in a civil suit for a mere neglect of their duty to repair highways ; that they are subject to no greater responsibility in this respect than commissioners of highways in towns. But it has been shown that where individuals or corporations assume obligations or duties for a consideration received from the public, they are liable for a neglect of those duties to any private citizen who may have been injured by such neglect. This doctrine, was applied in the case of Mayor of Lynn v. Turner, (Cowp. 86,) and Henley v. Mayor of Lyme Regis, (5 Bing. 91; 13 Barn. & Adol. 77; 1 Bing. N. C. 222, S. C. in error,) to municipal corporations.”

It will be seen, on comparison, that the charter of the village of Brockport is not essentially different in this particular from the charter of the village of Bondout. (Laws of 1852, p. 672. 16 N. Y. Rep. 169. Laws of 1857, p. 243.) The same doctrine is essentially supported by the following cases : People v. Corporation of Albany, 11 Wend. 539; The Mayor &c. v. Furze, 3 Hill, 612; The Rochester White Lead Co. v. City of Rochester, 3 Comst. 463; Lloyd v. The Mayor &c. of N Y. 1 Seld. 369.

I am aware that Justice Marvin, in Peck v. The Village of Batavia, (32 Barb. 634,) and Cole v. The Village of Medina, (27 id. 218,) undertakes to some extent to dispute the doctrine, and to curtail the application of the case of Weet v. The Trustees of the village of Brockport, but the principle and reasoning of the latter case was expressly adopted by the court of appeals in Hickok v. The Trustees of the village of Plattsburgh, (16 N. Y. Rep. 161,) and Con rad v. The Tnistees of the village of Ithaca, (Id. 158.) In the latter case the court say, in reference to the case of Hickok, (p. 165,) “ The decision of the court was that in the case of a village where the trustees were made commissioners of highways, the corporation was liable for their negligence.” (Also p. 172,) “ Considering the building of the bridge, a corporate act performed by its agents and servants, the defendants are responsible, upon settled principles illustrated by several adjudged cases. (The Mayor of N. Y. v. Furze, 3 Hill, 612. Rochester White Lead Co. v. City of Rochester, 3 Comst. 464. Hutson v. The Mayor of N. Y. 5 Seld. 163.”) See also Storrs v. The City of Utica, (17 N. Y. Rep. 104.)

I am of opinion, therefore, upon the authority of these cases, that if the road was out of repair and the defendants neglected to repair it, an absolute obligation and liability rested on the defendants in regard thereto.

3. But I am also of opinion that under the evidence in this case, and assuming that the defendants were not liable without the possession of adequate funds to make repairs, there is evidence in the case from which the possession of such funds might be inferred. It appears that the needed repairs might have been effected for about the sum of $50, and that the defendants had been provided by tax with $2800, and had expended from $2000 to $3000. It could not therefore be said to have been conclusively shown that the defendants were without funds.

It is further urged, that inasmuch as the statute provided that the money raised by assessment for highway labor was “ to be expended under the direction of the board of trustees in making and keeping in repair the highways, bridges and roads within the corporation in such manner as they judge to be the most beneficial to the public,” therefore this expenditure was confided to the judicial discretion of the trustees, which could'not be reviewed by any other tribunal. But to this there are several answers.

[Albany General Term,

September 7, 1863.

(1.) The obligation to repair, and the liability for neglect to repair, is absolute upon the corporation.

(2.) The provision in question establishes the rule of liability between the trustees in their official capacity and as agents of the corporation, and their principals, and not between the latter and the public or parties aggrieved.

(3.) The money to which the provision applies is that raised by assessments for highway labor, and not that derived from other sources, of which there may be a considerable amount.

(4.) The defendants can not be excused from making an indispensable repair, on the pretense of judicial irresponsibility at least without conclusively showing that all the funds in their hands had been applied in the- regular discharge of official duty. Complete irresponsbility would enable the trustees to decline making any repairs whatever, under a pretended exercise of their discretion. This could never have been intended.

4. Whether th.e place where the accident occurred required a guard or barrier in order to the safety and protection of travelers ; and whether the defendants were guilty of actual negligence in not constructing such guard or barrier, were questions which were fairly submitted to the jury by the presiding judge, and which it was their province to determine. There was enough to go to the jury upon those questions, and their finding thereon, or on the amount of damages, can not be disturbed.

A new trial must be denied, and there must be judgment for the plaintiff, on the verdict.'

Miller, J. concurred.

Gould, J. concurred in the result, but held the obligation to repair, to be absolute without reference to the possession of funds.

Ifew trial denied.

Gould, Mogebaom and Miller, Justices.]  