
    Houghtaling v. Shelly.
    
      (Supreme Court, General Term, Second Department.
    
    February 11,1889.)
    Highways—Obstruction—Liability.
    A horse driven by a third person, with whom plaintiff was riding, became frightened at some sacks of apples lying in the road, and jumped sideways, causing the wheel to strike a heap of stones left on the side of the road by defendant. The driver was thus thrown out, and, the horse beginning to run at high speed, plaintiff, in attempting to save herself, jumped from the wagon, and was injured. Held, that defendant was liable.
    Appeal from circuit court, Dutchess county.
    Action by Melinda Houghtaling against Benjamin Shelley for damages for personal injuries. The complaint was dismissed, and plaintiff appeals.
    Argued before Barnard, P. J.. and Dykman and Pratt, JJ.
    
      W. I. Thorn, for appellant. Esselstyn & McCarty, for respondent.
   Dykman, J.

The plaintiff was riding over a public highway in Dutchess county, which ran through land belonging to the defendant on both sides. There were heaps of stones on the side of the road, which had been placed there by the defendant a number of years before the accident of which the plaintiff complains in this action, and some of the stones were within a foot of the traveled track of the highway. There were also, at the same time, placed in the road, sacks filled with apples, which had been placed there by a person who was gathering apples from the defendant’s land. There were barrels there also. The plaintiff was riding in a one-horse wagon, with another person, who was driving) and the horse became frightened, and jumped sideways, and the wagon wheel struck one of the stone-heaps, and tipped over .sufficiently to displace the driver, who then fell out, and carried the reins •with him. The horse, thus left without control, started to run, and, while ¡lie was running at high speed, the plaintiff attempted to escape by leaping rfrom.the wagon, and broke her leg. This action was brought to recover the -damage she thus sustained; and at the trial the complaint was dismissed at -the close of the plaintiff’s case, and she has appealed.

Public highways in the rural districts, like streets and avenues in cities and villages, are constructed for the use of the public; and whoever obstructs them, or impairs tlieir usefulness, or renders their use hazardous, by placing any object upon the surface of the ground, becomes responsible for injuries to individuals resulting from their unsafety for their appropriate use. Such actions are not based upon negligence, but upon a wrongful act; and it is therefore unnecessary to prove either negligence of the defendant, or want of it in the plaintiff, to justify a recovery in the first instance. The following cases are authority for what has been said: Dygert v. Schenck, 23 Wend. 446; Congreve v. Smith, 18 N. Y. 79; Clifford v. Dam, 81 N. Y. 56; Jennings v. Van Schaick, 108 N. Y. 530, 15 N. E. Rep. 424. Placing the stone-heaps in the highway, and permitting them to remain there, in a position likely to cause accident or injuries, was a wrong which imposed liability upon the defendant for the damages which were likely to result to individuals by reason of their presence upon the surface in that place. It seems very likely that the trial judge felt some difficulty about the cause of the accident; and, while the first fright of the horse came from the apple sack, yet he was well in hand until the wheel of the wagon struck the stone-heap, and overthrew the driver; and-we think, therefore, the stone-heap was the approximate cause of the injury to the plaintiff. “ Where several approximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes; but it cannot be attributed to a cause unless without its operation the accident would not have happened, ” Ring v. City of Cohoes, 77 N. Y. 90. In any view, however, the question of fact involved in the action should have been submitted to the jury, under proper instructions; and, if the jury should find that the heap of stones was the approximate cause of the injury, the plaintiff would be entitled to recover. The judgment should be reversed, and a new .trial granted, with costs to abide the event. All concur.  