
    William H. Clapp, Resp’t, v. The Town of Ellington, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 11, 1889.)
    
    1. Negligence—Commissioner oe highways—Bridges.'
    Where a person passing over a highway bridge, riding upon a traction • engine propelled by steam power with tank attached, was injured by-reason of the bridge breaking down, Held, that the commissioner of highways is required to construct and maintain bridges of sufficient strength and material to insure the safety of persons passmg over them with such vehicles as are commonly used, and that any person who undertakes to use or travel upon a public highway in an unusual or extraordinary manner takes every possible risk of "loss upon himself, and can have no remedy against the town to recover recompense for injuries sustained, although they be the direct result of imperfections in a way for which it would be responsible to individuals in the lawful and proper use of it. Hollowing Gregory v. The Inhabitants of Adams, 14 Gray'", 242-348.
    2. Same—Manner oe hse question eor jury.
    It is a question for the jury to determine whether the vehicle upon which the plaintiff was riding in passing over the bridge was unusual and extraordinary in weight, in method of construction or manner of propelling same.
    Appeal from a judgment entered upon a verdict at the Chautauqua circuit, and from an order of the Erie special term denying motion for new trial.
    
      A. C. Wade, for resp’t; Henderson & Wentworth, and F. W. Stevens, for appl’t.
   Haight, J.

On the 1st day of September, 1885, the plaintiff was passing over a highway bridge in the town of Ellington, riding upon a traction engine, propélled by steam power, with tank attached, the two weighing eighty-five hundred pounds. The bridge broke down; and the plaintiff was injured, and this action was brought to recover damages.

Upon the trial, evidence was given tending to show that one of the beams of the bridge had become rotten; that it had not been repaired; and that it was in consequence of. the defective condition of the bridge that the injury was occasioned. At the conclusion of the trial, the defendant’s counsel asked the court to charge the jury that “ it was not. the official duty of the highway commissioner to so construct and maintain the bridge in question as to ensure the safety of persons passing over it in a manner involving peculiar and special danger arising from the unusual way and method of construction and manner of locomotion of the vehicle used in passing oyer it.” And again, he requested the court to charge “that if the jury a,re satisfied from the evidence that the vehicle upon which the plaintiff was riding, and with which he was connected, in passing over the bridge at the time of the accident in question, was unusual and extraordinary in weight, in method of construction or manner of propelling the same along the highway and such unusual weight, method of construction and locomotion was such as to cause unusual and extraordinary strain upon the bridge in passing over it, then the plaintiff took every possible risk of injury upon himself in trying to pass over the bridge, and the plaintiff cannot recover for the injuries sustained by the breaking down of the bridge' under such circumstances, although his injuries were the direct results of such imperfections and defects in the bridge.” The court declined to charge either of the propositions requested, further than as it.had already charged upon the subject. Exceptions were taken to such refusals. The court had not previously charged either of the propositions, but had charged “that there was no reason why people cannot travel over highways and bridges with this kind of implements or machinery as well as other wagons. If it is heavy and ponderous it naturally requires the exercise of more care than though it were light and not weighty. If unusual, of course greater degree of vigilance would necessarily be expected and required than though it was not of an unusual character. It is lawful to travel with it. It is only a question of diligence and reasonable care naturally required in the use of it.”

As to the first proposition embraced in the requests to charge we understand it to state a general proposition, and that it was not intended to limit it to the engine that broke through the bridge. Had it been limited to the engine in question the refusal of the court to charge as requested would have been correct, for the court could not be called upon to state, as a matter of law, that the engine in question was of unusual weight and method of construction, and that it involved peculiar and special danger. Such questions were for the jury and not the court. But as stating a general proposition, we think this and that which followed were both correct, and should have been charged.

These requests appear to have been copied from the opinion of the court, delivered in the case of Gregory v. The Inhabitants of Adams (14 Gray, 242-248). In that case damages were sought to have recovered for injury to an elephant which had broken through a bridge upon the highway.

Merrick, J.,

in delivering the opinion of the court says that it was the duty of the town to keep the bridges'“in such condition that having in view the common and ordinary occasions for their use and what may fairly be required for the proper accommodation of the public at large in the various occupations which may from time to time be pursued, each particular way should be so wrought, prepared and maintained that it may justly be considered for all uses and purposes for which it was laid out and designed, to be reasonably safe and convenient. * * * This is the measure and extent of the obligation of towns in reference to the support and maintenance of public highways. They are not,required to make preparations for the safety or convenience of those who undertake to use those ways in an unusual or extraordinary manner involving peculiar and special peril and danger whether it be in respect to the kind or character of animals led or driven or the bulk or weight of property transported. And if any person undertakes to use or travel upon a public highway in an unusual or extraordinary manner or with animals, vehicles or freight not suitable or adapted to the way opened and prepared for public use in the common intercourse of society and in the transaction of usual and ordinary affairs of business, he then takes every possible risk of loss upon himself and he can have no .remedy against the town to recover recompense for injuries sustained although they be the direct results of imperfections in a way for which it would be responsible to individuals in the lawful and proper use of it.”

It appears to us that the rule as thus laid down is both wise and just. The commissioner of highways is required to construct and maintain bridges of sufficient strength and material to ensure the safety of persons passing over them with such vehicles as are commonly or ordinarily used in. that country. But he cannot be required or expected to construct and maintain bridges which will ensure the safety of persons passing over them in a manner involving 'peculiar and special danger arising from unusual weight and so forth. As for instance, heavy buildings are sometimes moved through the public way, yet we should not expect a-commissioner of highways to construct and maintain bridges of sufficient strength to support moving buildings.

We are therefore inclined to the view expressed by the learned judge in the opinion quoted from, that it was a. question for the jury, and that if the jury became satisfied from the evidence that the vehicle upon which‘the plaintiff was riding at the time of the accident was unusual and extraordinary in weight, method of construction or manner of propelling the same, and that such weight, method of construction and locomotion was such as to cause unusual and extraordinary strain upon the bridge, that the plaintiff in running upon the bridge took upon himself the risk of injury, thereby becoming guilty of contributory negligence-which precludes his recovery even though there was negligence on the part of the highway commissioner.

It is true, as the trial court stated, that improved implements of travel are invented and machinery for threshing- and other agricultural purposes are matters" involved in civilization. It is further true that these traction engines; in farming communities have within the last few years come into use in the threshing of grain, and that they are usually propelled from place to place through the highways, and that these facts will have to be taken into consideration by the jury in determining whether they are unusual or extraordinary. But the question has heretofore been one for the jury and not for the court.

The legislature has now provided that no town shall be liable for any damage resulting to a person or property by reason of the breaking of any bridge by a traction engine in crossing the same, of the weight of four tons or over, while such person is engaged in transporting or driving such engine' along or upon the highways of the state. Laws of 1887, chap. 526.

In the future cases, will have to be determined under the provisions of this act.

The case of McCormick v. Township of Washington (112 Penn. St., 185) is a case in point, and sustains the views expressed in the case of Gregory v. The Inhabitants of Adams (supra).

_ Several questions were raised in reference to the admission and rejection of evidence, but inasmuch as the objecjections may be obviated upon the new trial, we have not thought it necessary to here consider them.

' The judgment and order should be reversed and a new trial ordered, costs to abide event.

Barker, P. J., Bradley and Dwight, JJ., concur.  