
    Ida A. Rankert, Appellant, v. The Town of Junius, Respondent.
    
      Negligence — a wayfarer injured by falling at- night into an open sluice near the traveled part of a village highway—notice to the town.
    
    An open and unguarded sluiceway some two feet wide and eighteen inches deep, practically concealed by rank vegetation, open on each side of a village highway, which has existed for several years and has caused a number of accidents, furnishes, in an action brought by a person who, while attempting to cross the highway on a dark night, was injured by falling into the sluiceway, sufficient evidence of negligence on the part of the highway commissioner of the town to require the submission to the j ury of the question of such negligence and of the plaintiffs contributory negligence.
    Follett, J., dissented.
    Appeal by the plaintiff, Ida A. Rankert, frtim a.judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Wayne on the 10th day of October, 1896, upon a dismissal of the complaint directed by the court after a trial at the Wayne Trial Term, and also from an order entered in said clerk’s office on the 9th day of November, 1896, denying the plaintiff’s motion for a new trial made upon the minutes. [No order denying the motion for a new trial appears in the appeal book.]
    This action was brought to recover damages for an injury to the plaintiff, caused by a defective highway in the town of Junius, Seneca county, which occurred on the 27th day of October, 1891. It was tried at the Wayne County Trial Term in June, 1896, when the plaintiff was nonsuited, and her exceptions were ordered by the court to be heard in the first instance in the Appellate Division of this court.
    The facts are stated in the opinion.
    ' M. C. Tcuylor., for the appellant.
    
      Charles A. Hawley, for the respondent.
   Ward. J.:

The plaintiff was injured by stepping into a hole about eighteen inches deep and two feet wide in a highway in the village of Dublin, in the town of Junius in Seneca county, early in the evening of the 27th of October, 1891. The accident was a severe one, breaking her leg. The village was a small, unincorporated one, having a' post office, a hotel, a store and other buildings. The street was. one considerably used by the people of the place and its vicinity. It was fifty-eight feet wide between the fences; there were dirt sidewalks along each side next to the fences in the village and at the place of the accident. In the center of the village the road running, north and south was intersected by a sluiceway or ditch, and over this sluiceway a dirt road twenty-four feet and six inches wide had been constructed, nearly in the center of the highway. The accident was on the east side of this roadway, and about two feet from its eastern edge. The sluiceway was open on each side of the highway to the limits of the highway, except such portions as were covered by sidewalk, and the distance of the sluiceway from the eastern boundaries of the highway to the roadway was twenty-three feet and three inches, and the depth varied from eighteen inches to thirty-one inches, with varying width at top and bottom, from two to three feet. Rank grass, horse radish and other vegetable matter had grown up along this sluiceway, and in the fall of the year had fallen over and substantially hidden it from ■ sight. The plaintiff was a dressmaker, living some distance from the village, who had been employed for several seasons by residents of the village and its vicinity, and was somewhat familiar with the location of the street, sidewalks and surroundings. It was the custom of people coming from the south on the east sidewalk approaching this sluiceway to pass diagonally from about opposite a Mr. Sherman’s residence to the beaten track of the road, and thence-proceed north to the post office on the west side. On the evening in question the plaintiff had arranged to return home, and after dark had passed , from the post office to this highway, thence diagonally to Mr. Sherman’s house on the east side of the highway; visiting.there for a few moments, she started to return to the post office by the same route, where she was to take a conveyance for home. The night was very dark. She testifies that she could not see just where she was going, but she was careful as she thought to take the course that would lead her into., the beaten track of the highway, and while doing so she stepped into this hole, as above stated. The evidence disclosed that this sluiceway had been' in the same condition for many years; that several years before a resident of this village had stepped into this hole, and had thereupon notified the highway commissioner of the town of the fact ;■ also that a number of others had had the same experience, and that it was a deathtrap and ought to be fixed; but that no attention was .paid to it by the town authorities. The plaintiff testified that she did not know of the existence of this open sluice-way ;• that she had observed the grass and other vegetable matter, and was trying to avoid ■ that when the accident occurred. There was no evidence as to when this sluiceway was created or by what authority. ■ . -

Section 16 of chapter 568 of the Laws of 1890, in force at the time of this accident, provides that' “ every town shall be liable for all damages to persons or property sustained by reason of any defect in its highways or bridges existing because of the neglect of any commissioner of highways of such town.”

« jf -x- * * a municipal corporation has notice of an unauthorized obstruction in a street or of an excavation therein which renders the way unsafe, it is bound to remove the obstruction and fill or guard the excavation so as to protect the public from injury, and for a negligent omission of the duty it will be responsible.” . (Judge Andrews speaking for the Court of Appeals in Weed v. The Village of Ballston Spa, 76 N. Y. 336.)

In that case the plaintiff drove into a trench which had been left unguarded in a street and was injured, and a recovery for damages in consequence thereof was sustained.

In Ivory v. Town of Deer Park (116 N. Y. 476) the plaintiff was traveling in a wagon in the night time along a road in the town of Deer Park, which had been for many years used as a highway. At a point where the beaten track curved, his horses, instead of following the curve, continued straight on, and the wagon fell down into a cut made by a railroad company about eleven years before, and the plaintiff was injured. The edge of the cutting was about eleven feet from the beaten track. There was no ditch or barrier of any kind between; the surface was substantially smooth and unbroken, and had remained so from the time that the excavation was made. In an action to recover damages it was held that the question of the defendant’s commissioner’s negligence was properly submitted to the jury.

The learned counsel for the respondent contends that the defendant is not liable because the defect was one of plan and not of negligent construction or dilapidation. We assume that he means by this that the town authorities have exercised a judgment as to the manner of the construction of this sluiceway and the protections to its approach, and the courts cannot supervise that judgment. There is evidence of negligent construction and of the continuance of an open ditch and public nuisance, in a highway, of sufficient depth and size to create injury to persons using the highway, whoever may have been responsible for it. .The counsel also contends that there is not.sufficient evidence of the defendant’s negligence or of the freedom of the plaintiff from contributory negligence to submit those questions to the jury. We cannot concur in this view. Leaving a sluiceway of this character open and unguarded, occupying twenty-three feet of the width of the fifty-eight-foot highway, and permitting grass and other vegetable 'matter to accumulate around it, so that it was difficult,, if not impossible, for the traveler1 to discover it, certainly presents some evidence for the consideration of the jury as to the defendant’s negligence. .The-streets are for •the use of the public. It is the duty of the municipal authorities to see that they are kept in a reasonably safe condition. The public have a right to use the streets in the night time as well as in the daytime, only more care is required on the part of the traveler or the pedestrian when his sight is obscured by the darkness. In deciding this motion and in determining the correctness of the non-suit, the plaintiff is entitled to the- most favorable inferences deducible from the evidence, and all contested facts are to be deemed decided in her favor. (Rehberg v. The Mayor, 91 N. Y.141.)

The'.question of contributory negligence should have been submitted to the jury. The condition of this ditch for the length- of time stated was constructive notice to the town authorities of this defect in the highway; besides, a commissioner of the town had. had actual notice of its condition, and of accidents similar to the one which- happened to the plaintiff.

The plaintiff’s exceptions should be sustained and a new trial granted, with costs to the plaintiff to abide 'the event.

All concur, except Hardin j P. J., who concurred. in the result, and Follett, J., dissenting.

Hardin, P. J.:

I am inclined to the. conclusion that there was evidence upon which the jury might have found defendant’s negligence and plaintiff free from negligence,- and so I favor a new trial. (See Maxim v. Town of Champion, 50 Hun, 88; S. C. affd., 119 N. Y. 626; Warner v. Village of Randolph, 18 App. Div. 461; Lane v. Town of Hancock, 142 N. Y. 515.) •

Follett, J. (dissenting):

I dissent on the ground that the-evidence is insufficient to sustain a verdict that the defendant was negligent or that'the plaintiff was free from contributory negligence.

Plaintiff’s exceptions" sustained and a new trial ordered, with costs to the plaintiff to abide the event and judgment vacated.  