
    Elizabeth A. Clapper, Resp’t, v. The Town of Waterford, App’lt
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    1. Negligence—Defective highway.
    A person in passing over a bridge over a ditch by the side of a highway, which bridge formed a part of a crossing over the highway constructed some years before by the inhabitants of a town, fell into a hole in the bridge, which hole had existed two months. Held, that she was entitled to recover.
    2. Same—Subsequent condition op bbidge.
    Plaintiff might show the condition of the bridge on the morning after the accident, as it would not be presumed that a change had occurred in the situation during so short a time.
    3. Same—Evidence op adoption op a bbidge.
    As a main issue in the case was whether the town had ever adopted the bridge, plaintiff might show that six days later it repaired it, such evidence being expressly limited to the question of ratification, and expressly excluded from any bearing upon the question of negligence.
    4. Same—Contbibutoby.
    Upon the question of contributory negligence, plaintiff might show that the walk was muddy at the time of the accident.
    5. Evidence—Obóss-examination—Its limitations.
    After a highway commissioner has testified as to funds in his hands, and to official acts, he may be asked on cross-examination whether the board of highway commissioners had, in the previous spring, called for the appropriation of money to be voted at the town meeting.
    6. Negligence—Liability op town undeb chap. 700, Laws 1881.
    Under Laws of 1881, chap. 700, § 1, the town, if anyone, is liable for the accident. Hence, it was not error to refuse a charge that if the town supervisor had refused to pay highway moneys to the commissioners, and they for that reason had no funds, the town was not liable.
    7. Tbial—Abstbact pboposition.
    The court need not charge a proposition abstractly true but not relevant to the facts of a case.
    8. Negligence—Towns—Absence op obdinaby cabe.
    The defendant asked the court to charge that to make it liable the jury must find that the highway commissioners were guilty of wilful misconduct or culpable neglect. The court said: “ If they did not exercise ordinary care it is culpable negligence.” Held, a correct exposition of the law.
    Appeal from a judgment entered upon the verdict of a jury, .and also from an order denying a motion for a new trial upon the minutes of the judge at the trial.
    
      I. C. Ormsby, for app’lt; P. D. Niver, for resp’t.
   Mayham, J.

The respondent in passing over a foot bridge over a ditch in the public highway in the town of Waterford stepped into a hole in the planlc and was injured. The highway was through a thickly peopled section, between the city of Cohoes and the village of Waterford. On either side of the highway was a ditch constructed for the ordinary drainage, surface drainage of the highway; at about right angles with it was a cross-walk. The bridge over the ditch constituted a part of the cross-walk, was constructed of plank placed upon stringers or timbers imbedded in the road-bed, and in the bank or curb outside of the ditch, with ■plank extending from one to the other across the ditch. The length of the plank bridge was about eight feet and its width ■about two and one-half feet, and it was about twelve inches above ■the bottom of the ditch. The proof tended to show that in this plank walk or bridge there was a hole through the planks about ten inches long and from four to five inches wide, and that the ■same had been there from May previous until the 31st of July, when this accident occurred.

This bridge had been constructed in connection with a stone cross-walk across the road-bed some years before by the inhabitants, and had been from time to time kept in repair by them. There was no proof that either the commissioners of the town or overseer of the ward had actual knowledge of the existence of this hole in the bridge or walk; and the defendant proved -on the trial that the commissioner of highways had no funds with which to repair bridges at the time of the accident Several objections and exceptions were taken by the defendant to evidence offered by the plaintiff on the trial. Exceptions were also taken to the refusal to nonsuit the plaintiff on the motion of the defendant, also the judge’s charge, and to his refusals to charge ■as requested by the defendant The plaintiff, on her own behalf, was permitted tp state the condition of the hole in the bridge as she found it the morning after the accident. This the ■defendant insists was error. The injury occurred about a quarter to nine o’clock in the evening, and the examination of the hole in the bridge was made the next morning. We see no error in the admission of this evidence.

In Burns v. City of Schenectady, 24 Hun, 10, cited on this pont by the plaintiff, it was held error to exclude the testimony of a witness that he had seen similar accidents from the same obstruction for which the action was brought before the time of the injury •complained of. This is not an authority to support the defendant’s theory here. In Collins v. N. Y. C. & H. R. R. R. Co., 109 N. Y., 243 ; 14 St. Rep., 783, also cited by the defendant on this point, the witness was not permitted to state the result of his observation as to the capacity of two different smoke stacks to prevent the emission of sparks, and the exclusion of the evidence was held error. I fail to see how that can be claimed as an authority for the defendant’s contention on this point. In Stodder v. N.Y., L. E. & W. R. R. Co., 50 Hun, 225; 19 St. Rep., 772, evidence was given under objection of the condition of a railroad switch after the accident, and after proof that it had been changed, and it was held that such evidence was not admissible without proof that, in spite of the substitution of the new portion, the condition of the switch remained practically the same as it was when the accident happened. But the ruling was put upon the ground that a change had been proved, and the effect of that confessed change must be known before its changed condition can be competent, as proving its condition at the time of the accident. But a change is not presumed; the legal presumption is that things remain as they are proved to have existed, until the contrary is proved, and we think the condition in which the bridge was the morning after the injury is presumptively its position the night previous, and that the burden of showing it different is upon the party asserting the change.

It is also insisted that the trial judge erred in receiving evidence of repairs of this bridge by Quackenbush after this injury. It was proved by the plaintiff under the objection of the defendant that Quackenbush was at the time acting commissioner of highways of the town of Waterford; but we see no valid objection to that evidence, nor do we think that it was error to prove his acts in relation to this bridge; it was a controverted and perhaps an important question in the case, whether or not the town authorities had recognized, constructed or-adopted this bridge as a part of the highway, but some evidence was sought to be given on both sides of this question. That being so, we think it was. competent to prove the acts of the commissioner of highways of the town, in reference to the bridge, solely as bearing upon that, question. After showing that Quackenbush was seen at this bridge about six days after the accident, the witness was asked this question: “ Did you see Quackenbush on this occasion repairing this bridge in question ?” The question as appears from the case was accompanied by the following statement: .

“ This question was asked for the purpose of proving only that the commissioners of the town of Waterford exercised control over the bridge, and that they had sufficient funds at the time of this accident to repair the bridge, and it was not offered to show anything else.” This question was objected to upon the ground that it was incompetent, improper and immaterial; that Quackenbush was not shown to be commissioner; that the bridge was not shown to be in the same condition in which it was at the time of the accident; that the evidence did not tend to show jurisdiction by the proper officer, or that they had funds.

If this question had been put without qualification, so that the inference could be drawn that it was offered as an admission that the bridge was out of repair to the knowledge of the officers o£ the town, it would have been clearly incompetent within the decisions of the following cases: Corcoran v. The Village of Peekskill, 108 N. Y., 151; 13 St. Rep., 105; Salters v. D. & H. C. Co., 3 Hun, 538; Payne v. T. & B. R. R. Co., 9 id., 526. The vice of this kind of evidence is tersely expressed in the Corcoran case, 108 N. Y., supra, where the judge says: “ While such evidence has-no legitimate bearing upon the defendant’s negligence or knowledge, its natural tendency is undoubtedly to prejudice and influence the minds of the jury.”

But in the case at bar this inference was expressly disclaimed by the question itself; and it was confined to two inquiries,, one at least of which was pertinent to the subject under investigation, viz., whether or not this was a part of the highway which was under the care and control of the commissioners. Upon that subject the acts and declaration of the commissioners would be competent. Bidwell v The Town of Murray, 40 Hun, 190, 191. There was no attempt to show the kind of repairs done by the commissioner to this bridge, and no inference could be fairly drawn that the repairs related to the hole in the planlc in which the alleged injury occurred, and as the question itself was an express disclaimer of any inference of an admission that the bridge was out of repair, to the knowledge of the commissioner, we do not see that its admission was error. In Payne v. Troy & Boston R. R. Co., 9 Hun, 526, the objectionable feature in the evidence was that it showed repairs done in remedying the alleged defect which had produced the injury complained of, and thus bore directly upon the question of the negligence complained of. In the case at bar, its offer and reception was for quite another purpose, and was, we think, competent within the rule laid down in the case of Morrell v. Peck et al., 88 N. Y., 398.

Nor do we think it was error to admit the evidence of the plaintiff showing the muddy condition of the road at the walk at the time of the accident. That evidence was proper, we think, as a -circumstance tending to excuse the plaintiff from the imputation ■of contributory negligence. The question put to the witness, John Richmond, was proper on a cross examination of that witness. 'The plaintiff called him and proved that he, with Quaclcenbush .and Wood, were commissioners of highways of that town and he was interrogated by the defendant and gave evidence on such examination as to the subject of funds in the hands of such commissioners, and other matters relating to their official acts. On the cross examination he was asked the following question: “Q, Did the board in the Spring of 1888 call for the appropriation of money to be voted at town meeting?” This was objected to by the defendant and the objection was overruled. This was not error on a cross examination in view of the evidence which had been elicited by the defendant on the direct examination of this witness. The defendant insists that the trial court erred in refusing to charge as requested in the defendant’s third request to charge. That request was as follows: “Third. That if the commissioners had demanded of the supervisor the highway money in his hands, and he did not pay it to them, and they for that reason had no funds, defendant is not liable and the jury may find that the highway commissioners had used reasonable diligence in obtaining the funds, and not obtaining them, they were not liable for any negligence in not repairing the highway if it was out of repair.” We think this request to charge was properly refused by the judge. The liability, if one existed in this case, was one of the town, and not that of the commission ers of highways in the first instance. Section 1 of chapter 700 of the Laws of 1881 provides that: “The several towns in this state shall be liable to any person suffering the same for all damages to person or property by reason of defective highways or bridges in such town in cases in which the commissioner or commissioners of highways of said towns are now by law liable therefor, instead of such commissioner or commissioners of highways.”

If the supervisor, being an officer of the town, to whom the funds applicable to roads and bridges have been paid by the collector, refuse or neglect to pay the same over to the commissioners, and by such neglect the commissioners are without funds, it is difficult to see upon what principle the town can be excused from liability for not keeping the highways or bridges in a reasonably safe condition for the public travel, on the ground that it or its officers charged with the duty of making needed repairs is out of funds and therefore excused from the performance of such duty. It is also insisted that the court erred in refusing to charge as requested in the defendant’s sixteenth request to charge.

The court in that request was asked to charge that if the jury found that the gutter bridge was a board sidewalk rather than a part of the worked highway, the commissioners were not bound to keep it in repair. As an abstract proposition that request to charge may be sound, but we fail to see its application to this, case, and hence the court was not required to charge it. It is. doubtless true that the commissioners or town could not be called upon to keep in repair a private sidewalk upon a country road which they had in no way authorized or adopted as a part of the public street, but there is no evidence that would justify the conclusion by the jury that this was such a structure. The proof showed it to be a stone walk across the traveled part of the highway and a bridge over the ditch, which was also a part of the worked portion of the highway. It had been there for many years and used in the same manner by the public.

In Hiller v. The Village of Sharon Springs, 28 Hun, 346, this court held that “If an individual voluntarily puts down a sidewalk the village may by acquiescence in the act for a sufficient length of time and by other acts accept of the sidewalk, and with it the village must take the obligation of keeping it in repair.” This rule may not in its full force extend to country roads, but when a crosswalk, which constitutes a part of the traveled street, and covering the ditch, has been suffered to exist for a number of years, we think, within the principle of the above case and others-cited in that case by the court, it may be properly submitted to-the jury for them to determine whether or not the town had adopted it as part of the worked highway, which it is bound to-keep in a reasonably safe condition for the use of the public. The-defendant excepted to the language of the judge in which he says-that: “ If they did not exercise ordinary care it is culpable negligence.” This was in response to a request of the defendant to-charge that the jury, to find the defendant liable, must find that the highway commissioners were guilty of wilful misconduct or culpable neglect The judge charged as requested, but added as above-quoted. We do not think the' remark to which the exception was taken, when taken in connection with the direct response to-the request, was error. The charge of the judge upon the whole case was impartial, and a correct exposition of the law applicable to the same, and we see no error committed upon the trial for which the judgment should be reversed.

Judgment affirmed, with costs.

Learned, P. J., concurs.

Landon, J.

I gravely doubt whether the town is liable. The citizens made the sidewalk and crosswalk. Chapter 61, Laws of 1860; chapter 93, Laws 1863; chapter 233, Laws 1881. If the town could not object, its failure to do so is not an adoption. But I do not dissent. _  