
    Whitney v. Town of Ticonderoga.
    
      (Supreme Court, General Term, Third Department.
    
    July 6, 1889.)
    1. Highways—Defects—Construction of Statute.
    A four-wheeled wagon truck, with a scraper attachment beneath, left in a highway over night without being lighted or guarded, is an obstruction which renders the highway defective, under Laws N. Y. 1881, c. 700, imposing a liability on towns for damages caused by defective highways.
    2. Same—Negligence—Evidence.
    Where defendant’s answer, which was read in evidence, admitted the ownership of the scraper, but alleged that the town, having no place to store it, and no means to purchase a place for it, had left it in the highway, and on a side of the road which was little used, and that in so doing defendant had used proper care and diligence, these declarations were properly submitted to the jury, to be considered with other testimony bearing on the question of negligence.
    3. Appeal—Motion to Set Aside Verdict—Presumption.
    Where the appeal is not taken from an order denying a motion to set aside a verdict, it will be assumed that, if the rulings of the court were correct, the evidence justified the verdict.
    Appeal from circuit court, Albany county.
    Action by Nelson B. Whitney against the town of Ticonderoga, to recover for injuries sustained by the plaintiff “by reason of a defective highway.” The evidence tended to show that on May 4, 1888, after dark, the plaintiff, while riding in a “Frazer Road-Cart,” and driving the horse attached to it, along Main street, in the village of Ticonderoga, came in collision in the dark with a road-scraper belonging to the defendant, which had been left in the roadway near the sidewalk, and was thrown from his cart, and seriously injured. Judgment being given for plaintiff, defendant appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      Richard L. Hand, for appellant. C. B. McLaughlin, for respondent.
   Landon, J.

The appeal is from the judgment. No appeal is taken from the order denying the motion made upon the minutes to set aside the verdict. We must in such ease assume that if the rulings of the court were correct the evidence justified the verdict. The judgment, therefore, must be affirmed, unless the exceptions taken upon the trial disclose some ruling of the court to the prejudice of the defendant.

At the close of the plaintiff’s case the defendant moved for a nonsuit, upon the ground that “there is no evidence of the existence of a defective highway in the town of Ticonderoga. ” The evidence was to the effect that this highway was not defective, otherwise than on account of this scraper.. The scraper had been left standing for the night upon the roadway near the west sidewalk, unguarded and unlighted. The night was dark. The plaintiff did not see it. It was in the form of a four-wheeled wagon-truck, with a scraper device beneath the wagon frame, quite heavy, four feet two inches wide, seven feet two inches long, exclusive of the pole. It is obvious that it was a formidable and dangerous obstacle for a horse and light vehicle to collide against in the dark. The statute (chapter 700, Laws 1881) imposes a liability upon towns for certain damages caused “by reason of defective highways or bridges in such town, in cases in which the commissioner or commissioners of highways of said towns are now bylaw liable therefor.” Refinement in discrimination may distinguish between a defect in the highway itself and an obstacle upon it, but why a liability should be imposed in one case and not in the other is not apparent. The legislature obviously meant, by a defective highway, one actually unsafe for public travel. A wooden awning over a sidewalk, (Hume v. Mayor, etc., 74 N. Y. 273;) an advertising banner suspended over the street, (Champlin v. Village of Pen Yan, 34 Hun, 33, 102 N. Y. 680;) a pile of ashes in the street, (Ring v. City of Cohoes, 77 N. Y. 83;) a pile of stones upon the side of the roadway, (Eggleston v. Turnpike Road, 18 Hun, 146, 82 N. Y. 281,)—have been held to’be defects in the streets or highways. The exception on this ground cannot be sustained.

Another ground urged for the nonsuit was that there is no evidence of negligence upon the part of the commissioner of highways. The defendant’s answer was read in evidence. It denies everything in the complaint not admitted, and alleges the ownership of the scraper to be in the town or road-district thereof in which Main street is situate; that neither the town nor road-district had owned or provided any place for storing it; that the commissioner had no funds applicable to procuring a place, and there was no place to put it except within the lines of the highway; and that the scraper was placed, at the time in question, close upon the west line of the highway, outside the portion of the same traveled by teams, leaving ample room for teams to pass each other without danger from it; and that “defendant’s said commissioner of highways used due and proper diligence and care in the placing and leaving of said scraper to prevent accident.” The defendant’s counsel urges that this answer must be taken as an entirety, and that the confession cannot be separated from the avoidance. This is true, when regarded as a pleading. In such case every part of the pleading is adopted, nothing extrinsic is to be considered, and therefore nothing is presented to impair the full force of the result which the pleader sets forth. If the avoidance is ample as pleaded, there can be no confession in the pleading which can be separated from the ample avoidance. But when the pleading is read in evidence, it is read as the declaration of the party, and takes its place as any other testimony, to be considered by the jury in connection with the other testimony. The jury must determine the issues of fact upon a fair consideration of all the testimony. Their convictions or inferences cannot be coerced by the court, and they may, upon all the evidence, reach the conclusion that the confession of the party is true, and the avoidance false. Mott v. Ice Co., 73 N. Y. 543. Within this rule there was evidence of the negligence of the defendant’s commissioner,—evidence that he placed the scraper where it was left. The declaration of defendant that the commissioner used due diligence and care in so doing was only a part of the whole testimony upon that issue,—the circumstances were the other-part. The jury could consider it all, and adopt the inference deducible from the circumstances, instead of that declared by the defendant. Judgment affirmed, with costs. All concur.  