
    Emily M. Studeor, Respondent, v. The Village of Gouverneur, Appellant.
    
      Negligence — of milage trustees in allowing wagons to stand by the side of a street —. they are not objects likely to frighten gentle horses.
    
    The action of the authorities of á village, having a population between 4,000 and 4,500, in allowing two lumber wagons to stand in front of a wagon shop, upon the side of a street three rods wide, notwithstanding the fact that there is a by-law of the village under which it could have compelled the removal of the wagons, does not constitute negligence which will make the village liable to one whose horse, while going at a “ stiff gait,” is frightened by coming upon these wagons at night, and -while the street is unlighted, except by lights in the buildings and, to some extent, by the moon.
    
      It seems, that ordinary wagons are not objects which have a tendency to frighten gentle and well-trained horses.
    Appeal by the defendant, The Village of Gouverneur, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 5th day of October, 1896, upon the verdict of a jury, and also from an order bearing date the 28th day of September, 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover damages resulting from personal injuries caused by the alleged negligence of the defendant.
    
      William Neary, for the appellant.
    
      Henry Purcell, for the respondent.
   Landon, J.:

On the evening of the 29th day of June, 1895, the plaintiff was seated in her buggy, driving northerly at a stiff gait ” along Clinton street in the village of Gouverneur, when her horse shied at the sight of two lumber wagons standing upon the west side of the street in front of a wagon shop. The street was not lighted, except by lights in the buildings, and to some extent by the moon. The horse sprang towards the opposite side of the street and came in collision with a team and heavy wagon, coming in an opposite direction. The plaintiff was thrown violently upon the ground and severely injured. The wagons in front of the shop, or one of them, had been standing there two or three days. The defendant is charged with negligence, because the village authorities suffered these wagons to stand there. The street was three rods wide, and the wagons did not obstruct the plaintiff’s passage, or that of any other travelers. We do not think the recovery ought to be sustained.

The village of Gouverneur has a population of between 4,000 and 4,500. Clinton street, upon which this accident occurred, is not the principal business street of the village. In a large city like New York it may be negligence amounting to a nuisance to permit a Wagon to stand permanently upon the side of the street. (Cohen v. Mayor, 113 N. Y. 532.) But the conditions in that city are unlike those in the village of Gouverneur. The customs are different, and in such a village the propriety of according accommodation to tradesmen and persons in industrial occupations in front of their respective places of business should be measured, as it is in New York and in the large cities, by the prevailing conditions. Negligence is relative. In determining its presence or absence in a given case the abstract terms commonly used to define it may mislead, unless accompanied by a just appreciation of all the conditions. Beltz v. City of Yonkers (148 N. Y. 67), which holds that a city is not bound to guard against a danger it could not reasonably anticipate, is in point. We think that the evidence in the case before us, tending to show that the village authorities knew that it was not unusual for two or more wagons to stand temporarily upon the west side of Clinton street, in front of the wagon shop there, and that, knowing it, they did not take any steps to remove the wagons, although there was a by-law of the village which they could have invoked for the purpose, does not justify the finding of negligence against the defendant. The defendant is not liable because its trustees did not enforce this by-law. (Coonley v. City of Albany, 57 Hun, 327; Toomey v. City of Albany, 38 N. Y. St. Repr. 91; Griffin v. Mayor, 9 N. Y. 456.)

Ho doubt the by-law is a useful power to have when needed to prevent abuses, but it would be an unreasonable one, and become an abuse itself in such a village, if resorted to upon every casual or temporary violation of it.

But it is claimed that the wagons were an obstruction to the street because likely to frighten horses. It has been held that such objects as are likely to frighten horses of ordinary gentleness ought not to be suffered to remain in deposit upon the side of the streets or highways. (Tinker v. N. Y., O. & W. Railroad Co., 71 Hun, 431; S. C., 92 id. 269 ; Eggleston v. Columbia Turnpike Road, 82 N. Y. 278.) The tendency of some objects to frighten horses may, perhaps, be assumed from our knowledge of the habits of horses, and from the strange form and rare presence of such objects upon the streets. But ordinary wagons are neither strange nor rare. Evidence was given in the Eggleston case, and in Champlin v. Village of Penn Yan (34 Hun, 33), tending to show that the pile of stones in the one case, and an overhanging banner in the other, had frightened horses before the occasions complained of. In the absence of evidence tending to show the liability of horses to take fright at wagons, we think the jury had no right to assume it. It is safer to assume that a horse that will shy at common wagons upon the road or standing by the roadside in the day or night time, is not of ordinary gentleness, or is of defective training, or- needs to be firmly held in hand by the driver.

We think the motion of the defendant for a nonsuit should have been granted.

The judgment and order should be reversed, new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and a new trial granted, costs to abide the event.  