
    John Paine, Resp’t, v. The City of Rochester, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 16, 1891.)
    
    Negligence—Highways.
    While traveling on one of defendant’s streets plaintiff’s horse became frightened by a steam roller which was being operated thereon. A man. seventy-six years old who was there for the purpose of protecting travelers from injury by the roller seized the horse", but was thrown down, and plaintiff and his wife were thrown out and the buggy and other property injured. In an action to recover for such injuries, Reid, that a motion " for nonsuit was properly denied.
    Appeal from a judgment of the county court of Monroe county, entered upon the verdict of a jury.
    
      Henry J. Sullivan, for app’lt; Eugene Van Voorhis, for resp’t.
   Corlett, J.

The action was originally brought in a justice’s court of the town of Greece, Monroe county, to recover damages for injuries to the plaintiff’s horse and buggy, and some other articles of property. The justice rendered judgment-for the plaintiff for $200 damages. The defendant appealed to the county court of Monroe county for a new trial, which was had, and resulted in a verdict of like amount. Judgment was entered, and the defendant appealed to this court.

The plaintiff resided in the town of Greece, and on the 26th day of June, 1889, his wife and himself started with a horse and buggy to go to Rochester, where they intended to take a train for Canandaigua to attend a wedding. When they reached Lake avenue, which is one of the public streets of the city, there was a heavy steam roller, operated by steam, being used to level the street. The engine was from twelve to twenty feet in length, and puffed considerable steam when in use. The plaintiff’s horse became frightened. A man seventy-six years of age was upon the street for the purpose of protecting travelers from injury by the engine on the day of the accident. He seized the plaintiff’s horse, but was thrown down, the horse ran away, and the plaintiff and his wife were thrown out and the buggy and other property injured.

The evidence tended to show that the defendant was guilty of negligence in keeping the engine in motion when the plaintiff's horse was approaching; also, in omitting to provide proper signals and protection, and in keeping a man inadequate, by reason of age, to perform the duties required.

It also tended to show that the plaintiff was guilty of no negligence which contributed to the injury. He had a right to travel on the street and assume that it was in proper condition. Pettengill v. City of Yonkers, 116 N. Y., 558; 27 N. Y. State Rep., 531.

At the close of the evidence a motion was made for a nonsuit, which was properly denied. No exception was taken to the charge of the trial court, which was full and clear on every material question.

The case was properly submitted to the jury, and no errors appearing, the judgment must be affirmed.

Judgment affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.  