
    (86 Hun, 67.)
    VAN VRANKEN v. VILLAGE OF CLIFTON SPRINGS.
    (Supreme Court, General Term, Fifth Department.
    April 12, 1895.)
    1. Municipal Corporations—Constructing Street—Proof of Negligence.
    It is negligent for a village to leave building materials piled in the roadway of a street at night, without any light thereon to give notice to travelers.
    2. Negligence—When not Imputed.
    Where plaintiff, while in the carriage of a third person at his invitation, and having no control over the horses, is injured by the negligence of defendant, the contributory negligence of the owner of the carriage, if any, will not be imputed to plaintiff.
    Appeal from circuit court, Ontario county.
    Action by Mary A. Van Vranken against the Village of Clifton Springs for personal injuries. From an order denying a motion for a new trial, made on the judge’s minutes, after a verdict for plaintiff, defendant appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS and BRADLEY, JJ.
    Edwin Hicks, for appellant.
    Frank Rice, for respondent.
   LEWIS, J.

The plaintiff recovered a verdict of $1,200 against the defendant, a municipal corporation, for .personal injuries received by being thrown from a carriage in the nighttime, caused by the vehicle coming in contact with a pile of refuse in one of the streets of the village. The proprietor of the Clifton Springs Sanitarium had been engaged in the construction of a building fronting -apon the street, and had placed a large quantity of material, consisting of brick, stone, etc., alongside of the gutter, in the traveled part of the main' street of the village. It had remained there for a month or two prior to and at the time of the accident. The plaintiff, at the invitation of a Mr. Newton, was riding with him at the time of the accident, about 1 o’clock in the morning of the 20th of September, 1893. The horse and buggy were owned by Mr. Newton, and he was driving the horse at the time. The plaintiff was seated in the buggy with him. The right wheels of the carriage ran upon this pile of rubbish. The wagon was overturned, and the plaintiff received quite serious injuries. The night was dark. The Only light was that which came from the stars. The pile of rubbish was in the shadow of trees and buildings. There was no lamp or other light upon it to give notice to travelers, and had not been during the night. The negligence of the defendant was established beyond any question. As to the contributory negligence of the plaintiff, the horse was gentle, and was going at the time at a moderate gait. It was a top buggy, with side curtains, and the top was up.

The circumstances of the accident, as testified to by the plaintiff, tended to show that she was free from negligence contributing 1o her injuries. The plaintiff being in the buggy at the invitation of Mr. Newton, and having no control over the horse, the negligence of Mr. Newton, if any, contributing to the accident, would not be imputable to tire plaintiff. McCaffrey v. Canal Co. (Sup.) 16 N. Y. Supp. 495. Whether Newton was guilty of negligence contributing to the accident was a question of fact for the jury, and their verdict was conclusive upon that question.

We find nothing in the exceptions of the defendant calling for a reversal of the order. The verdict, we think, was fully sustained by the evidence, and the order appealed from should be affirmed, and judgment directed for the plaintiff upon the verdict. All concur.  