
    Samuel Bryant, Adm’r, Resp’t, v. The Town of Randolph, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 12, 1892.)
    
    1. Negligence—Highways—Barriers at bridge approaches—Liability of TOWN.
    In making its crossing a railroad elevated a highway twelve feet in I860, leaving it twelve feet wide at the top and without railing or barrier. Plaintiff’s intestate, while descending the steep incline with a heavy load, and while upon the railroad lands, was killed by the overturning of his wagon through the wheels cutting into the loose gravel. The approaches to the crossing were unsafe and dangerous. Held, that the town was liable for the omission of the commissioner in failing to erect barriers.
    3. Same.
    The duty imposed upon railroads by Laws 1850, chap. 140, to restore the approaches to a railroad bridge does not relieve the commissioners of highways from the care and control of the approaches to railroad crossings, although constructed by the railroad company as part of its statutory duty.
    This action was brought to recover damages occasioned by the ■death of George A. Bryant by the overturning of a wagon loaded with bark on a public highway, in the town of Randolph, on the 23d day of September, 1887. The deceased was a young man nineteen years of age, and on the morning of the day mentioned he started two miles south of the place where the New York, .Pennsylvania & Ohio Railroad crosses the intersection of two public highways in the town, with a team and wagon loaded with hemlock bark, to go to the village of East Randolph, which lies about two miles north of the railroad.
    The railroad was constructed in 1860, and crossed the two highways about twelve feet above their original grade. This rendered necessary the raising of the surface of each of the highways as they approached the crossing, both on the north and south, so as to enable travelers to cross the track of the railroad. The Tailroad company thereupon constructed embankments in the highway on each side of the crossing twelve feet high at the intersection of • the highways and the crossing, and descending northerly and southerly from thence until the original grade of the highways was reached. The' embankments from a point a few feet from the crossing were eleven to twelve feet wide, and travel was practically confined to the space on the top of the embankments. The sides were left unguarded by any railing or other barrier.
    Owing to the angles at which the highways approached the crossing, a person driving from the south approached the crossing on a curve to the left, and on reaching the crossing was required to make a curve to the right, and then another curve to the left, in order to follow the road to East Randolph.
    The intestate reached the crossing on his way north, and after passing over the crossing drove so near the edge of the embankment that the right hind wheel of the wagon commenced to cut down into the loose gravel on the west side, and finally the wagon overturned and the intestate received the injury of which he died. The intestate was seated on the top of his load on the right hind side, just forward of the right hind wheel of the wagon, holding the reins, and in reach of a brake connected with the axle of the wagon, in which position he could see the top of the horses’ ears, but not.their bodies. It appears that drivers sometimes sat in the position occupied by the intestate, and sometimes near the front wheel, in which case they would operate the brake by means of a rope attached to the lever, and a loop in which the foot was placed. It was shown that the intestate was a careful driver, acquainted with the management of horses; that he was familiar with the road, and that the team he drove was steady and manageable.
    The traveled part of the embankment was firm six to eighteen inches from the edge on the west side. It had rained from twenty-four to thirty-six hours before the accident, and it may be inferred that the side of the embankment was softened by the rain. Maps were introduced showing the course of the wagon after it passed the crossing, as indicated by the tracks made by the wheels, and from which it appeared, as claimed by the plaintiff, that the horses-were properly in the track, and that the wheels on the near side of the wagon both commenced to cut down in the beaten track, and that the front wheels remained in their proper position until, by the cutting down of the hind wheel more and more, the front, wheels were drawn over and the wagon overturned.
    The claim to charge the town of Randolph is based upon the alleged negligence of the commissioner of highways in omitting* to observe due care in protecting the embankment by a railing or barrier, or otherwise, so as to render it safe for public travel. It. was also claimed that in 1886 the commissioner of highways, in attempting to improve the road, had rendered it more dangerous* than it was before. The embankments had continued as they were constructed in I860 until 1866. It is not seriously questioned that the crossing was difficult and dangerous for loaded teams by-reason of the curves and the narrowness of the embankments.
    The plaintiff’s cotinsel offered to prove that in repeated instances; prior to the accident- in question, accidents had occurred to-travelers and teams from the condition of the highway at this point, but the proof was excluded on the defendant’s objection.
    It is conceded that the commissioner of highways had sufficient funds to make any reparation required.
    The jury found a verdict for the plaintiff, and the judgment entered thereon was affirmed by the general term.
    
      William H. Henderson, for app’lt; Franh W Stevens, for resp’t..
    
      
       Affirming 38 St. Rep., 956.
    
   Andrews, J.

The act of 1881, chap. 700, imposes upon the-several towns of the state liability, for any damages occasioned to persons or property by reason of defective highways, in cases where theretofore the commissioner of highways of the town would have been liable. The general highway statute places upon the highway commissioner the “care and superintendence of the highways and bridges ’’ in his town. 1 Rev. Stat., 501, § 1.

It is the established rule in this state that where an individual sustains an injury by misfeasance or nonfeasance of a public officer, who acts contrary to, or omits to act in accordance with, his duty, an action lies against such officer in behalf of the party injured. Bronson, J., Adsit v. Brady, 4 Hill, 630. In accordance with this principle, prior to the act of 1881, commissioners of highways were held liable to a person injured from a defective highway within his jurisdiction which he had negligently omitted. to repair, provided he had adequate funds furnished by the town with which he could have made the necessary reparation. Robison v. Chamberlain, 34 N.Y., 389; Hover v. Barkhoof, 44 id., 113; People ex rel., etc. v. Town Auditors, 74 id., 310.

The opposite view taken in the opinion of the court in Bartlett v. Crosier, 17 Johns., 440, and in Weet v. Village of Brockport, 16 N. Y., 161 n, and in some of the New England states has not been followed.

Under the statute of 1881 the liability of a town is commensurate with that of a commissioner of highways before the act was passed, and while the duty of reparation rests upon the commissioner of highways since the passage of the act as before, the civil liability for injury to persons or property from his neglect to perform the duty is transferred to the town, and it becomes liable to respond in damages wherever before the statute the commissioner would have been liable.

In this case- the jury have found that the approaches to the railroad crossing were unsafe and dangerous, and their finding is justified by the evidence. The embankment confined travel to the narrow roadway on the surface, and the evidence tends to show that the lines of approach to the railroad track- along the •embankment were such that travellers incurred great hazard, especially with loaded wagons, of driving too near the edge of the ■embankment and of being precipitated over the side into the depression below. The embankments were "constructed by the rail-Toad company in 1860 within the lines of the existing highways. The sides were left unguarded by any fence or barrier, and this •condition continued until after the accident in question.

We do not understand it to be controverted that if these approaches remained a part of the highways of the town of Randolph, over which the commissioner of highways had, and was bound to exercise, the same jurisdiction as over other parts of the highways in the town, a case of negligence on the part of the ■commissioner was established, which in the absence of contributory negligence on the part of the deceased gave a right of action ■against the town under the act of 1881. Negligence on the part •of a commissioner of highways fnay consist as well in the omission to erect barriers in dangerous places in a highway as in leaving the bed of the highway defective. Ivory v. Town of Deerpark, 116 N. Y., 476; 27 St. Rep., 643; Dillon on Mun. Corp., § 1005, and cases cited.

But it is contended on behalf of the town that no responsibility rested upon the commissioner of highways as to the condition of the embankments, for the reason that they were part of the railroad crossing and. made necessary to adapt the highways to the grade of the railroad, and were constructed by the railroad in performance of the statutory duty imposed upon a railroad company which constructs its line across a highway to restore the: same “ to its former state or to such state as not unnecessarily to impair its usefulness.” Laws of 1850, chap. 140, § 28, subd. 5. This duty is, as is properly contended, a continuing duty, and it. is insisted that the effect of the statute is to withdraw from the jurisdiction of the commissioner of highways such portions of the highways of the town as form a part of a railroad crossing, and to place the duty of repair exclusively upon the railroad corporation. This claim is, we think, unsound.

The railroad statute confers a privilege upon railroad companies and imposes a duty. It permits them tó locate their lines across highways, but it couples the privilege with the duty of restoration. For a failure to perform the duty there is a public remedy by indictment, or by mandamus, or other action at the instance of the highway commissioners of the town, under chapter 255 of the Laws of 1855, and a private remedy also in behalf of a person injured. People ex rel. Green v. R. C., 58 N. Y., 153; People v. N. Y. C. & H. R. R. R. Co., 74 id., 302; Masterson v. Same, 84 id., 247; McMahon v. R. R. Co., 75 id., 231.

But we perceive no ground for maintaining that the duty imposed by the statute of 1850 upon railroad corporations relieves commissioners of highways from the care and control of those parts of public highways constituting approaches to railroad crossings, although constructed by the railroad company as part of its statutory duty. The object of the statute of 1850 was two-fold; to legalize the crossing of highways by railroads, and to impose upon the railroad company crossing a highway the burden and expense of restoration. But the original highway, when its route is not changed, remains a public highway as before. The railroad company has the right in the first instance to determine the place of crossing and the manner of restoration. But, as was said in People ex rel. Green, supra, the discretion reposed in the railroad company is ministerial and not judicial. The commissioner of highways is not deprived of his jurisdiction, and under the statute of 1855 may institute proceedings to compel the company to fully perform its duty, or he may, as it seems, where the company is in default, proceed and do the necessary work and maintain an action against the company for the expense.

There is no express statute depriving a commissioner of highways of jurisdiction over parts of highways which a railroad company may adapt for approaches to crossings, and it would seem to be opposed to public policy to exempt them from his general jurisdiction and 'responsibility and to turn over travellers injured by defective reparations to a remedy against a private corporation.

We think the ruling at the trial upon this point was correct.

The defendant also set up the defense of contributory negligence. We deem it unnecessary to restate the evidence bearing upon this point. It is sufficient to say that the question upon the facts proved was for the- jury.

One ground upon which contributory negligence was claimed was the position of the intestate upon the load of bark. It was claimed that he should have sat near the front wheel, in full sight of the horses, and have operated the brake by a rope from that position. The court allowed under objection a question to be put to two of plaintiff’s witnesses, whether the place where the intestate sat was a proper place for a driver to be, and they answered in the affirmative. We think these questions were improper and that the matter was not provable by the opinion of witnesses. But all the facts bearing upon the question were before the jury, composed presumably of men competent from judgment and experience to determine the matter upon the facts for themselves, and we think it is quite plain from the circumstances appearing in the record that the improper evidence allowed did not prejudice the defendant, and for that reason the error is not sufficient ground for reversing the judgment. There are some other exception's, but the main reliance was upon the two points we have noticed and we think none of "the others require particular consideration.

The case was carefully tried,'the charge was clear and impartial, ■and we think the judgment should be affirmed Judgment affirmed, with costs.

All concur.  