
    Horace B. Shepard, Jr., Respondent, v. Bellew & Merritt Company, Appellant.
    
      Negligence — a contractor constructing a State road, held not liable for an injury occasioned to a horse driven over it by catching his foot between a cobblestone and the filling around it.
    
    Upon the trial of an action to recover the value of a horse, it appeared that the defendant'was a contractor engaged in building a State road; that it did not barricade the road nor entirely bar the public from the use thereof; that it did, however, give notice to the public by posted notices that the road was closed and in a dangerous condition; that for the purpose of raising the road to the required grade, the defendant placed thereon a filling made of cobble and other stones covered by clay; that on the afternoon in question, when the earth was soft and muddy from a recent rain, an employee of the plaintiff, who, by daily observation, had acquired full knowledge of the situation and of the material which was being used for filling, drove a. team and a heavy laden wagon over the portion of the highway which was being graded; that one of the horses got one of its hind legs jammed in between a cobblestone and the mud or filling around it and that in its efforts to extricate itself the leg was broken, necessitating thejtilling of the horse.
    
      Held, that a judgment entered upon a verdict in favor of .the plaintiff should bé reversed;
    That there was no evidence that the defendant had been guilty of any negligence in performing the work; ,
    That the evidence established that the plaintiff’s driver contributed to the injury by attempting to drive over the new filling and that he must be deemed to have made the effort at his own risk.
    Chase and Houghton, JJ., dissented.
    Appeal by the defendant, the Bellew & Merritt Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the -office of the clerk of- the county of' Montgomery on, the 1st ■day of February, 1904, upon the verdict of a' -jury for, $225; and also from an order bearing date the 25th day-of January, 1904,. and entered in said cleric’s office, denying- the defendant’s motion "for a,, new trial made upon the minutes. ■ ' .
    
      D. M. Westfall, and Charles O. Pratt, for the appellant.
    
      H. V. Borst, for the respondent.
   Parker, P. J. :

This casó has been tried upon the theory that the defendant company was ehgaged in building a State road between Aiken and Amsterdam, in Montgomery county, N. Y., under the “ Glood Roads. Law;’’ and we must assume that such was the,fact upon this, appeal.

The following facts, therefore, are to be deemed established,:

That the defendant was rightfully in possession, of the highway- and carrying on the work therein which it^did carry on.

That it had not barricaded the road, nor entirely shut the. same. Tip from public use; but that it had given notice to the public, ’ by posted notices, that for a distance of about a mile and a quarter-tile road was cloged and"in a dangerous condition. Arid it is plain that the work of 'construction was in progress along that whole, length. Of these Tacts the plaintiff had full knowledge.

Notwithstanding such notice, the public, generally continued -to-' travel over this section of the- highway,-. On August 27, 19.03, the defendant had for a distance of several hundred feet raised the, road up to grade by filling it up front twelve tp fifteen inches. Such filling was .made of cobble arid other stones in the bottom- of' different sizes, aiid-of clay on. tdp. This was preparatory to constructing a macadam road above it; and the grading where the accident happened had been done several days before it occurred,, and such grading, extended across the .whole width of the road which, was to be there constructed: It had rained considerably Tor sometime before the accident, and the; earth- was soft and muddy. During the forenoon of the twenty-seventh, which was a fair day, the plaintiff's driver" had passed- over the road twice. On these occasions he took the north side of the roadway — next to the railroad track which ran along the north side of the highway. About two o’clock iii the afternoon he again started to pass over the same highway with a team and a load of coal weighing some 3,010 pounds. The wagon weighed about 1,700 pounds and the horses weighed upwards'of 3,000 pounds. When he arrived at or near the place of the injury, he found a large gang of men were tilling up the ruts on the north side, where he had passed in the morning, and so he took the -southerly side and attempted to drive, along it. He came to a place where it was soft and muddy and stopped to let the horses rest. Then he went forward till their front feet were in the mud and again stopped to let them take wind.” Then he drove on until both hind feet were stuck in the mud and he had to stop. At this spot the fill was then about fifteen inches over the ordinary roadbed. One horse then got its right hind leg jammed in between a big cobblestone and the mud or filling around it, and in its effort to draw it out it threw itself and that leg-was thereby broken, and the horse had to be killed.

That driver had been traveling that road very frequently, for days after the notices had been put up, and every day for two or three days before the accident, and had seen them filling in the road at that place and knew the material which was used to make such filling.

This action is brought to recover the value of the horse so killed, and such are substantially the facts upon which the jury have renr dered a verdict for the plaintiff..

The question is whether such verdict should be sustained.

The defendant undoubtedly had the right to make the fill that it did make, and I can discover no reason why it might not use the material which it did use to make it with. Ho negligence can be charged against it for using stones and clay with which to make a fill fifteen inches deep. At least, there is no evidence to show that such material was in any way unsafe or unfit for that work, and the trial judge substantially charged the jury, without any objection on the part of the plaintiff, that negligence could not be predicated for such use. Hence upon this appeal such is the law of this case. The only possible ground of complaint against the defendant, therefore, is a failure on its part to give sufficient notice of the fill, and of the material with which it was made.

Without discussing just how far such a specific notice should have been given by the defendant to thé public' generally, it seems clear that this plaintiff., through his agent Phceñix, had abundant notice of the situation and of any danger attending it. He knew that the defendant was, over the whole mile and a quarter to which the notices put up applied, making the road correspond to a fixed and definite £grade line, and he well knew the material which it, used for that purpose. When he started to drive over that stretch of mud, at which he stopped to rest li.is team, he knew that it was a stretch of grading, recently made, and of what it was constructed. He had knowledge, by his own observation, of every fact that the defendant could have informed him of, had it been there to Warn him. He had not only the notice which was given .to the public generally, that repairs were being made and that the road was dangerous and Was to be considered as closed, but lie had the knowledge obtained by his own observation while daily passing over the mile and a quarter t.o which such notice referred. Such notice was, in my judgment, all that could reasonably be required from the defendant under the circumstances of tins case. I do not discover, therefore, from "this record that the defendant has been guilty of any negligence in ■ performing the work which it was there with lawful authority to perform. And so far as the verdict of the jury has found otherwise, it is not supported by the evidence in the case. (Nolan v. King, 97 N. Y. 565; Atwater v. Trustees, etc., 124.id. 602.)

Moreover, I am of the opinion that the plaintiff’s driver plainly contributed to the injury complained of by attempting to drive so heavy a team, With so heavy a load, over this new filling. He knew-from the indications before him that the recent rains had turned the earth into mud, and he could judge, as well as the defendant, as to whether his team would be likely to pull the load through without accident. It must be borne in mind that nothing had been done by the defendant which could mislead the ■ plaintiff .into supposing that this part of the road was finished, or in a safe condition to travel over. Clearly the driver must be deemed to have made the effort at his own risk, and no just cause of action has been estab-. lished against the defendant.

This judgment should be reversed and a new trial granted.

All concurred, except Chase and Houghton, JJ., dissenting.

Judgment and order reversed and new trial granted, with costs to appellant to abide event. 
      
      See Laws of 1898, chap. 115, as amd.— [Rep.
     