
    (73 Hun, 443.)
    DOUGHERTY v. TRUSTEES OF VILLAGE OF HORSEHEADS.
    (Supreme Court, General Term, Fourth Department.
    December 8, 1893.)
    1. Municipal Corporations—Duty as to Streets.
    Where a village charter gives the trustees “power to regulate * * * highways, bridges, sidewalks, drains and sewers of said village and to prevent the incumbering of the same in any manner, and to protect the same from encroachment and injury,” the village is charged with the duty of keeping its sidewalks and approaches thereto in a reasonable condition for the use of the public.
    3. Same—Pleading.
    The complaint in an action against a village is sufficient, where it alleges that, while plaintiff was driving along a street, his vehicle, without his fault, ran on a large stone in the street, and plaintiff was thrown to the ground and injured; that the stone was an illegal obstruction, and was liable to injure persons passing along the street; and that the commissioners and trustees knew that the stone was there; and that plaintiff’s injuries were caused by their negligence. Sherman v. Village of Oneonta, (Sup.) 21 N. Y. Supp. 137, followed.
    8. Same—Contributory Negligence.
    In such case the question of contributory negligence was properly submitted to the jury, where it appeared that the stone had been placed to prevent persons from driving against trees along the side of the street, but that it was not in the beaten track; that at the time of the accident the stone was covered with snow, so that it could not readily be seen, and the evidence was conflicting as to the speed at which plaintiff was driving.
    4. Same—Obstruction—Question fob Jury.
    Whether a stone placed in the street of a village to protect trees from injury from vehicles is an obstruction in the street is a question for the jury.
    Action by Charles F. Dougherty against the trustees of the village of Horseheads. Plaintiff moves for a new trial upon exceptions, under Code Civil Proc. § 1000, after a trial at the Chemung circuit, where plaintiff was nonsuited, and an order made that the exceptions taken by plaintiff be heard in the first instance at the general term.
    Granted.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    Reynolds, Stanchfield & Collin, for plaintiff.
    Dailey & Bentley, for defendant.
   HARDIN, P. J.

Defendant’s charter was amended 486 of the Laws of 1855, (Laws 1855, p. 875.) Section 19 of that act confers upon the board of trustees power to make such general ordinances, by-laws, and regulations as they deem proper and expedient for the good government and health of the village, and to have the management and control of the finances and of all properly, real and^ personal, belonging to said corporation. Subdivision 5 of section 21 confers upon the trustees power—

“To prevent the incumbering of the streets, crosswalks and sidewalks; and to compel every person to keep snow and dirt from and off the sidewalks in front of the premises owned or occupied by such person.”

In section 31 it is provided that:

“The street commissioner shall have the general supervision of the streets, alleys and highways, and public grounds. He shall act under the direction of the trustees, who may at all times limit, restrain and regulate him in the performance of his duties and assign him such lawful duties in respect to such streets, highways, alleys, and public grounds as they deem proper.”

By section 37 the trustees—

“Are authorized and empowered to raise money by tax * * * to pay all contingent expenses of'the corporation, and also to carry into effect the several powers, provisions and privileges granted by this act.”

By section 44 the village is declared a separate road district, and. it is provided:

“The trustees shall have power to regulate, amend and construct cross- and side-walks, and to pave, plank, grade, flag, straighten, widen, _ discontinue, alter and clean the streets, highways, bridges, sidewalks, drains and sewers of said village and to prevent the incumbering of the same in any manner and to protect the same from encroachment and injury. * * *”

We think, under the provisions of the charter, the defendant was-clothed with power to regulate its streets^ sidewalks, and the approaches thereto, within the limits of the public streets of the village, and that it was charged with the duty of keeping the same-in a reasonable condition for the use of the public. Sherman v. Village of Oneonta, (Sup.) 21 N. Y. Supp. 137, and cases cited in. the opinion; Goff v. Village of Little Falls, (Sup.) 20 N. Y. Supp. 175; Stebbins v. Village of Oneida, (Sup.) 5 N. Y. Supp. 483; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459, 11 N. E. 43; Nelson v. Village of Canisteo, 100 N. Y. 89, 2 N. E. 473.

Plaintiff, in his complaint, alleges that on the 7th day of January, 1887, upon the invitation of Gilmore, he was riding in a cutter,., to which was hitched a horse, along Main street of the village, and' that:

“While so passing upon said street the cutter struck and was driven, without the fault or negligence of plaintiff or said Gilmore, against and upon, a large stone or rock within said street, and was thereby overturned and' broken. This plaintiff and said Gilmore were thrown therefrom, and this-plaintiff thereby and therefrom suffered and sustained serious grievous bodily injuries, whereby he was caused great bodily pain and mental anguish.”

And the complaint further alleges:

“That said large stone or rock was an illegal obstruction in said highway, and was dangerous, and liable, if not certain, to cause injuries to persons-passing upon said highway in vehicles which strike against or pass upon it. That the street commissioner, and the board of trustees, and the other officers of said village well knew, before the said accident and the said injury to plaintiff, that such rock was within said street, and was an illegal' and dangerous obstruction thereto; and the injuries to plaintiff, and all-their consequent results, were caused by the negligence, inattention, and carelessness of said commissioners and said board of trustees, and their failure to fulfill and perform their duties and obligations as such officers, and not, to any extent or in any degree, by the carelessness or negligence of said plaintiff or said Gilmore.”

Criticism is made by the defendant upon the complaint. We-think it sufficiently stated a cause of action, and that the language-we used in Sherman v. Village of Oneonta, supra, may be appropriately applied as an answer to the criticism of the defendant. In. that case we said:

“If the defendant desired the complaint to contain a more accurate, definite,, and minute description of the place where the injuries were received, it-should have sought its remedy by a motion to have the complaint made more-definite and certain, or that a bill of particulars be rendered. The defendant was not misled by the "language of the complaint The evidence that was received in respect to the location where the injuries took place was admissible. There is no available force in the criticism made of the complaint.”"

In the course of the decision delivered by the trial judge at the close of the evidence, he observed—correctly, we think—that:

“There is no doubt that the municipality have the duties to keep the street •in repair for those passing along the streets.”

It appeared by the evidence that the west line of Main street is 10-feet west of the west line of the wagon or driveway, and adjacent to the south side of the driveway upon the street, and that it is 1 foot from the street line to the sidewalk, and that the sidewalk is some 6 feet, and there is a grass plot or lawn about 3 feet, and that in the lawn or grass plot is a row of trees extending southerly, and north of the most northerly tree was the place of the stone which caused the overturning of the cutter in which the plaintiff was riding,—the stone was some 16 inches across, east and west, and 20 inches across, north and south, and 1 foot through, up and down,—and that at the time of the accident the stone was 3 feet and 6 or 8 inches north of the tree. It appeared that the stone was placed in that position, at the instance of the owner of the Platt House, by one Jacob Greatsinger, while he was acting for or in behalf of the street commissioner of the village. The avowed purpose of the stone was to protect the tree from being driven against by persons driving upon the street, or from the street to the barn. It also appeared by the evidence that upon the occasion of the injuries the stone was covered with snow, and was not readily seen, although, on behalf of the defendant, several witnesses testify that the snow was not entirely over the stone, and that it was visible. It also appeared that the north end of the stone was five or six inches south of the regular beaten track. When the injuries were received, the horse was upon a slow or jog trot, although some evidence was given tending to show greater speed. When the right runner of the cutter struck the stone, the cutter tipped over, and the plaintiff struck his hip upon the snow of the beaten track, and Gilmore fell upon him, and he received quite extensive injuries, for which this action is brought. We think no error was committed by the trial judge in holding that the question of whether the plaintiff was free from contributory negligence, or not, was a question for the jury.

We are also of the opinion that it was a question of fact whether the stone was an incumbrance of the street, and such an obstruction thereof as to leave the street in an unsafe condition, and that it was for the jury to determine whether the defendant had been guilty of negligence in suffering the stone to remain in the condition in which it was, as disclosed by the evidence. Even if it be assumed that the stone was not placed there by the direction of the defendant, it had remained a sufficient length of time to arrest the attention or notice of the defendant or its officers; and if it was an incumbrance, and a dangerous object to be left in the street, in the manner in which it was suffered to remain^ it became the duty of the defendant to remove the incumbrance, so as to leave the street in a reasonable condition for the use of the public. Rehberg v. Mayor, etc., 91 N. Y. 137; Kunz v. Troy, 104 N. Y. 344,10 N. E. 442; Langlois v. City of Cohoes, 58 Hun, 226, 11 N. Y. Supp. 908. It appears that the street in question was one extensively used by the. people frequenting the village. Taking the evidence produced upon the trial most favorable to the plaintiff, we are of the opinion that the question whether the defendant was guilty of negligence, or not, was one which should have been submitted to the jury. It must be borne in mind that where a nonsuit has been granted the plaintiff is entitled to the benefit of every fact that the jury could have found from the evidence, and to every legitimate inference that is warranted by the evidence. McNally v. Insurance Co., (N. Y. App.) 33 N. E. 475. We are of the opinion that there was more than a scintilla of evidence to uphold the plaintiff’s case, and therefore the cases of Hemmens v. Nelson, 138 N. Y. 529, 34 N. E. 342, and Corning v. Nail Factory, 44 N. Y. 577, and Dwight v. Insurance Co., 103 N. Y. 341, 8 N. E. 654, and Hall v. Stevens, 116 N. Y. 210, 22 N. E. 374, are not applicable to the case before us. We are of the opinion that the nonsuit was improperly granted, and that a new trial should be ordered.

Motion for a new trial granted, with costs to abide the event. All concur.  