
    Frank Barrett, Pl’ff, v. The Town of Walworth, Def’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    Towns—Highways—Obstructions.
    In opening a highway thirty or more years ago, a large houlder, thirteen to fourteen feet across and three to four feet high, was found in the line of the road and near its center. This was allowed to remain, the road being carried around it. The boulder could be seen for a quarter of a mile on either side. Plaintiff's horse became frightened as he approached it, reared and shied to the side of the road, upset the wagon and injured plaintiff. Held, that whether this houlder should be removed in constructing the highway was a question for the judgment and discretion of the commission'ers; that in deiermining that question they acted in a quasi judicial capacity, and the town was not liable for their error of judgment, if it was such, and that a nonsuit was properly granted.
    Motion for a new trial on case and exceptions directed to be heard in the first instance at the general term, after a nonsuit of the plaintiff at the circuit.
    
      Edwin Hicks, for pl’ff; Walter S. Hubbell, for def’t.
   Lewis. J.

There was laid out and opened in the town of Walworth, Wayne county, thirty years or more ago, a highway three rods in width. In opening it there was found in- the line of the highway and very near the center thereof a large natural boulder. The portion thereof extending above the surface of the ground was idne feet four inches from east to west, twelve feet north and south, thirteen feet northwest and southeast. The west side was two feet nine inches above the ground, the south side three feet seven inches above and the east side three feet eleven and one-half inches above the ground. The highway ran in a northerly and southerly direction. In opening the highway the town authorities did not remove the boulder, but in constructing the roadbed turned it to the west side of the boulder. On the 26th day of May, 1889, in the day time, the plaintiff was driving a horse before a buggy on the highway in question and as he approached near to the stone his horse was frightened by it, reared and sliied to the side of the road, upset the wagon and injured the plaintiff, and he brought this action to recover compensation for his injuries. At the close of his evidence he was nonsuited and his exceptions were directed to be heard at the the general term in the first instance.

The highway where the accident occurred was straight for a long distance. The stone was plainly visible to a person traveling on the highway for a quarter of a mile either - side of the stone.

The road-bed as it turned from the general course of the highway and passed by the stone was of sufficient width to allow a team under ordinary conditions to safely pass it. The land in the vicinity of this boulder was quite stony. Other stones of considerable size were lying in and upon the sides of the highway, but of much less size than the one in question. The boulder was imbedded in the ground, but to what depth the record fails to show. It is the contention of the plaintiff that the size and appearance of the stone were such, lying as it did in the center of the highway, it was likely to frighten road-worthy horses, and ■that the highway commissioner was guilty of negligence in permitting it to remain in the road. The evidence fails to show that there was anything peculiar in the shape or appearance of' the stone to distinguish it from other boulders, except its dimensions.

The general rules of law as to the duties of public authorities charged with the care of highways have been quite well settled by a long line of decisions. It is as a general proposition negligence to permit objects to remain in a highway which from their nature or appearance obviously have a tendency to frighten horses of ordinary gentleness and docility. Thompson on Negligence, 778.

A reasonably safe and commodious roadbed must be maintained so that the traveler can either by day or night pass over it without being exposed to unnecessary peril by objects therein. A very different roadbed, however, is expected and required in the highways of the sparsely settled farming districts than is expected to be provided in cities and villages. Towns are not obliged to keep the whole of a highway from one boundary to the other free from obstructions and fit for the use of travellers. In many cases all the property of the towns would be insufficient for that purpose. There may be ledges of rocks, ravines and water courses in the road. It cannot be expected that towns shall in all cases make bridges the whole width of the road or fill up ravines or cut down ledges of rock. Highway officers are not required to grade the whole space within the limits of the highway so that a traveller can safely drive his carriage over every part of it. In ordinary -cases if they provide a pathway of suitable width and so define it as that there shall be no reasonable danger of its being mistaken, they have fulfilled their duty to the public. Ireland v. Oswego Plank Road, 13 N. Y., 531.

Rocks and stones within the limits of the highway, but not-obstructing the travelled path, are not defects for which a town is liable. Keith v. Easton, 2 Allen, 554 (citing 16 Pick., 189; 7 Cush., 498).

When, in laying out and opening highways, natural obstacles like streams, gullies, hills or boulders are encountered, the authorities are at liberty to change the course of the highway to-pass around the obstacles. They would not, however, be justifled in allowing an actual obstruction or encumbrance to remain in the highway which tended to impede or hinder travel and made the highway dangerous to travellers coming in contact or ■collision with it. The record shows that this boulder did not •constitute an actual obstruction in the way of travel, for a roadway of sufficient width was constructed at the side of it. Upon the highways of our country objects of various description will be found ; many of them may cause horses to take fright, but to ■compel the authorities to remove them all would impose a too .serious burden upon the public.

There is a class of cases holding the highway authorities liable for obstructions placed in the highway, like piles of stones, lum'ber or any object liable and calculated to frighten road-worthy horses. In such cases a question is presented for the decision of a jury as to the negligence of the town authorities. In Eggleston v. Columbia Turnpike Road, 18 Hun, 146, a quantity of stone was deposited upon the margin of the road for the repair of a culvert. In Foshay v. Town of Glen Haven, 25 Wis., 288, a horse was frightened by a hollow burnt log lying close beside the travelled part of the road.

It'was held in these cases that a case was presented for the de•oision of a jury.

In another case a large rock or boulder had been taken out of the bed of the highway and was allowed to remain an unreasonable time. It was held the town was liable for damages for injuries to the driver by his horses taking fright at a stone. These were cases of misfeasance and not of nonfeasance. In the cases last referred to the object or thing was one which the commissioners were bound to remove irrespective of its tendency to frighten horses.' In order to charge the town with liability the character of the object should be such as to make the danger obvious and the duty of the town clear. 30 Conn., 129; 39 id., 376; 65 Me., 547; 66 id., 402.

Had the boulder in question been placed in this highway after the highway was laid out and opened and been allowed to remain h>y the public authorities for an unreasonable length of time, a different question would be presented. Town authorities in laying out and opening a highway act to a certain extent as judicial or quasi judicial officers.

They are required to exercise their judgment and discretion, and, within certain limits, the town is not liable for their errors of judgment or for errors in the general plan of their work. Urquhart v. Ogdensburg, 91 N. Y., 67; same case again in 97 id., 238; see, also, Gould v. Topeka, 32 Kans., 485.

They cannot in constructing a highway leave therein obvious dangers to the travelling public. In laying out this highway this boulder was found in the line of the road. It was a natural object. Its removal involved the expenditure of considerable labor, and the question was presented to the authorities as to the propriety of its removal. They determined to change the course of the roadbed and pass to the side of the boulder and not subject the town to the expense of its removal. And in determining that question they acted, we think, in a quasi judicial capacity and if they erred in judgment the town cannot be liable for the error.

We think there was no error committed in directing the non-suit and that the plaintiff’s motion for a new trial should be denied and judgment ordered for the defendant upon the nonsuit.

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