
    Henry W. Embler, Resp’t, v. The Town of Wallkill, App’lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    1. Highways — Duty of commissioner.
    Commissioners of highways are charged with the duty of active vigilance and watchfulness in ascertaining the condition of the highways, and they must exercise proper care in their maintenance in a reasonably safe condition for all ordinary travel.
    2. Same — Liability of town fob defects in. '
    Plaintiff, while riding on top of a load of hay along one of defendant’s highways, was struck in the face by the stub of an overhanging branch of a tree and thrown from the load and injured. The branch hung over the traveled portion of the highway so low as to leave insufficient space for the passage of a load of hay, and had been in that condition for ten years. Held, that these facts showed inexcusable negligence, and that the town was liable for the injury.
    Appeal from judgment in favor of plaintiff for $6,000, entered on verdict
    Action to recover for personal injuries.
    
      William Vanamee, for app’lt; W. F. O'Neill, for resp’t
   Dykman, J.

While the plaintiff was riding on the top of a load of hay along one of the public highways of the town of Wallkill, he was struck in the face by the stub, of an overhanging branch of a tree and scraped off of the load and precipitated to the ground and severely injured.

This action was brought against the town for the recovery of the damages sustained by the plaintiff by reason of such injuries, and the basis of the action is the negligence of the highway commissioners in failing to maintain the road in question in a condition of safety for travelers.

- The cause was tried at the circuit and the plaintiff recovered a verdict of $6,000, and the defendant hás appealed from the judgment and also from the order denying the motion for a new trial on the minutes.

Commissioners of highways are charged with the duty of active vigilance and watchfulness in ascertaining the condition of the highways, and they must exercise proper care in their maintenance in a reasonably safe condition for all ordinary travel. Such are the duties imposed upon those officers by the law, and when they are not discharged and injury results to a traveler from a failure in their performance, without his fault, he has a cause of action for the damages sustained by reason of such negligence.

At the common law the towns were not liable for the negligence of such commissioners, because they are neither the agents nor servants of the town, and the commissioners were personally liable for the consequences of their own negligence, but now in this state the legislature has intervened by statutory enactment and imposed a liability upon the towns in all cases where the commissioners would be personally liable.

The statute is wise and salutary, and furnishes a more certain and adequate remedy and satisfaction for injuries resulting from the negligence of public officials.

Upon the facts and the law this is a plain case for the plaintiff. The tree in question stood upon the side of the highway, and its branches hung over the traveled portion of the road so low as to leave a space insufficient for the passage of a load of hay, and that condition had existed for more than ten years. Those facts presented a case of inexcusable negligence, and there is no principle which will exonerate the town from the liability resulting therefrom.

The case was submitted to the jury by the trial judge in a charge which fully explained and laid down the legal principles which controlled the case, and there was no error committed tipon the trial.

The point respecting the liability of the city of Middletowm is untenable.

The judgment and order denying the motion for a new trial' should be affirmed, with costs.

Pratt, J., concurs. .  