
    Johanna Brennan, as Sole Administratrix, etc., of Hugh Brennan, Deceased, Appellant, v. The Trustees of the Village of Bath, Respondent.
    Fourth Department,
    March 8, 1911.
    Municipal corporations — negligence — death by drowning — defective highway.
    Action against a village to recover damages for the death of a person who in the night time fell into a pond and was drowned owing to the alleged failure of the defendant to keep the highway bordering the pond in a safe condition. Evidence examined, and held, sufficient to warrant the'jury in finding that the defendant was negligent and the decedent free from contributory negligence.
    McLennan, P. J., and Williams, J., dissented.
    Appeal by the plaintiff, Johanna Brennan, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 4tli day of October, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Steuben Trial Term, and also from an order entered on the same day directing the dismissal of the complaint.
    
      
      Warren J. Cheney, for the appellant.
    
      James McCall, for the respondent.
   Kruse, J.:

Hugh Brennan fell into a pond in the village of Bath and was drowned, so it is claimed, and it is contended that he came to his death through the fault of the defendant village, the claim being that the highway which runs along beside the pond was in an unsafe and dangerous condition, and not properly and sufficiently guarded on the side next to the pond; that Brennan in passing along the cinder path or walk on the margin next to the pool stepped into a hole and was precipitated into the water. The action is for damages sustained by the widow and children occasioned by the death of Brennan.

At the close of the plaintiff’s evidence a nonsuit was granted, upon the ground that the plaintiff had failed to show that Brennan was. free from contributory negligence, and the complaint dismissed.

The question of defendant’s negligence is hardly debatable. As has been said, on the margin of this highway, next to the pond, there was a cinder pathway used by pedestrians. In various places the bank had caved, in, leaving holes extending into the path or walk. The fence on the bank had become dilapidated and insufficient to prevent persons from falling into the pond. Several casualties of this kind, resulting in the loss of life, had happened before the one in question, and the 'village officers had had actual notice thereof and of the unsafe and dangerous condition of the highway.

The more serious question is whether the evidence is sufficient to show that the defective and unguarded condition of the highway was the cause of Brennan’s death, and if so, whether his freedom from contributory negligence was established. I think the evidence was sufficient upon both questions, and that the defendant should have been put to its proof.

Brennan was last seen alive on the night of October 31, 1908, between eleven and twelve o’clock, at the Bead House in the village, eating a bowl of clam chowder. He would naturally take the highway in question to get to his home. The next morning his body was found in the pond, about fifteen or twenty feet from a place where the side of the wall had caved in, and where it is claimed that Brennan fell.

He was a man sixty-three years old and in good health, and it can be found from the evidence that when last seen alive he was sober and his faculties in a normal condition.

While the witnesses differ as to the precise condition of the highway and fence at the particular place, the jury would have been warranted in finding that the-hole was three feet or more deep, the break extending from the top at an angle of forty-five degrees or more, making a V-shaped break in the bank and extending two and a half feet or more into the sidewalk; that the fence on the bank leaned over toward the pond ; that all of the boards except the rail and top board were off, thus leaving a sjiace entirely open below, except a wire, and that had become loose and was buried in the cinders which had caved off from time to time; that the hole had existed for several months, and others had fallen into it.

On the morning of the finding of Brennan’s body it appeared from the description given by some of the witnesses that there were footprints in the cinders and loose material at the place where the bank had broken away and caved in. Stones were turned over and the leaves were brushed together in a row. When Brennan’s body was taken out of the water cinders were found adhering to the back of his coat, and in the back of the neck and in the hair, and there was a bruise on the side of the head.

While there were electric lights in the vicinity there is evidence showing that they were not always lighted; and, besides, at the place in question there were trees and shrubbery, which made the place dark.

The depth of the water in the pond varied. When not in use the pond would fill up. It was- from five to six or seven feet deep where it is claimed Brennan was drowned, and on the bottom was soft mud, from eighteen inches to two or three feet deep.

Without calling attention to other circumstances, I think the evidence is such that a jury could find therefrom that Brennan stepped into this hole, or so near it that the loose cinders and material gave way and precipitated him into the1 pond, and that he was drowned. It is not improbable that in falling he may have been injured to such an extent as to become dazed or unconscious, or even more seriously than that. But that lie lost his life as a result of the unsafe condition of this highway, and without fault upon liis part, I think .the jury would he warranted in finding from the evidence as it now stands.

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

All concurred, except McLennan, P. J., and Williams, J., who dissented upon the ground that 'defendant was not shown guilty of actionable negligence nor the plaintiff’s intestate free from contributory negligence.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  