
    Francisco Wood, Resp’t, v. The Town of Gilboa, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 13, 1894.)
    
    1. Towns—Highway.
    It is a question for the jury whether a town is, or is not, negligent in failing to erect suitable railings along the side of a highway in dangerous places.
    2. Same—Liability.
    Where there is a defect in a highway, one whose horse becomes fright" ened and runs away can recover, though the conduct of the horse is a proximate cause of the injury,
    3. Evidence—Negligence—Complaints.
    Exclamations of pain, made by the injured party after the accident, while his attendants were turning him over or touching him, are competent
    4. Appeal—Harmless.
    Improper evidence is harmless, where the point, upon which it bore, was clearly established by competent, uncontradicted testimony of other witnesses.
    Appeal from a judgment in favor of the plaintiff, and from an order denying a motion for a new trial on the minutes.
    
      Gilbert & Andrus {C. L. Andrus of counsel) for app’lt; Krum db Grant {Robert Krum of counsel) for resp’t
   Putnam, J.

Questions similiar to those presented in this action have been so often passed upon that an opinion seems unnecessary.

The case of Maxim v. Town of Champion, 50 Hun, 88 ; 23 St. Rep., 945; aff’d, 119 N. Y., 626, and many other authorities which might be cited, have established the doctrine that it is a question of fact for a jury whether a town is or is not negligent in failing to erect suitable railings along the side of a highway in dangerous places. That question was fairly and property submitted to the jury in this case, and the verdict establishing the negligence of defendant cannot be disturbed. In Maxim v. Town of Champion it was also held that the action of the highway commissioners in failing to erect barriers in such a case was not of a judicial charcter; and also, the fact that the highway had been in the same condition for a long period, and that no previous accident had oceured, although proper evidence in the case did not relieve the town of the charge of negligence.,

Hence the verdict of the jury upon conflicting evidence establishing the negligence of the town officers in omitting to erect barriers at the place in question cannot be properly disturbed by us. . _

_ Appellant urges that the plaintiff was guilty of contributory negligence in driving a horse that he knew to be vicious and unmanageable. There was evidence in the case, however, from which the jury could infer that the horse was no inore vicious and unmanageable than colts usually are. The question of fact in this regard was submitted to the jury by the court without objection by defendant, and the finding of the jury is conclusive.

The defendant also insists that the accident being the result of two causes, one the defective condition of the highway, and the other the conduct of plaintiff's horse, and the evidence not showing which cause produced the injury, the plaintiff must fail under principles settled in Taylor v. City of Yonkers, 105 N. Y., 202; 7 St. Rep., 332, and kindred cases. We think this case is more like Ring v. City of Cohoes, 77 N. Y., 83; Kennedy v. Mayor, 73 N. Y., 365, and Ivory v. Town of Deerpark, 116 N. Y., 477; 27 St. Rep., 643. These, latter authorities held that where there was a defect in the highway, one whose horse became frightened, ran away and became uncontrollable, could recover although the conduct of the horse was a proximate cause of the iujury, if the negligence of the officers of the town was another proximate cause of the injury.

IE the highway was in the same condition as it was at the time of the accident for many years prior thereto notice of its unsafe condition to the officers of the the town is presumed.

We have examined the exceptions taken on the trial to the rulings of the court and think that none of them require a reversal of the judgment. The statements of the plaintiff after the accident (which defendant insists were erroneously in evidence), as proved by witness Croswell and others, we think, should be deemed mere exclamations of pain. They were made while his attendants were turning him over or touching him, and we think, not incompetent under the cases. Roche v. B. C. & N. R. R. co., 105 N. Y., 294, 297; 7 St. Rep., 361; Hagenlocher v. C. I. & B. R. R. Co., 99 N. Y., 136.

An examination of the testimony given on the trial, however, shows that if the above evidence was improperly received it did no harm, as the condition of plaintiff after the accident and his pain and suffering was clearly proved by other witnesses who were not contradicted.

The judgment should be affirmed, with costs.

Mayham, P. J., concurs; Herrick,!., dissenting.  