
    George A. March, Appellant, v. The Town of Smithfield, Respondent.
    Third Department,
    March 8, 1911.
    Municipal corporation — town — negligence — highway — removal of bridge to footpath—failure to erect barrier — contributory negligence.
    Where a stream flows between a footpath regularly graded and the roadway of a highway, not only the footpath and roadway but also the accustomed ways between the two are parts of the highway, and it is the duty of the highway commissioner to protect them.
    
      Where in an action against a town for damages for injuries alleged to have been caused by its negligence, it appears that the highway commissioner removed a bridge that had been used as a way between the footpath and the roadway of a highway, which were separated by a stream, and that he had failed to erect any barrier along the footpath at the place where the bridge had been to prevent persons who had been accustomed to use it from falling into the stream, so that the plaintiS’s wife fell into the stream at night while attempting to cross from the footpath to the roadway at the usual place, the defendant's negligence is for the jury.
    Plaintiff's wife, who had arrived at her father’s house, which stood in front of the place where the bridge had been removed, after dark on the night of the accident, and who when she had lived at home had been accustomed to use this footbridge, cannot be said to have been guilty of contributory negligence as a matter of law in attempting to cross the stream at that point, although she admitted that she had been informed of the removal of the bridge by telephone but had forgotten it at the time.
    Kellogg, J., dissented.
    Appeal by the plaintiff, George A. March, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Madison on the 21st day of October, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial at the Madison Trial Term.
    
      Joseph D. Senn, for the appellant.
    
      John A. Johnson, for the respondent.
   Smith, P. J.:

This action was brought to recover damages for loss of services of plaintiff’s wife by reason of an injury sustained by her caused as it is claimed by the negligence of the defendant town.

In a hamlet called Peterboro resides the plaintiff’s father, Harvey Austin. A stream of water flows down by the side of his house to the highway, thence passes in front of his house between the footpath and roadway upon said highway, and thence under the highway. Defendant had for some time maintained barriers between this ditch where this water flowed and the roadway, and at a point in front of the house of the said Austin had made an opening in that barrier and had built a bridge across the stream. In October, 1908, for the purpose of cleaning out the stream, this bridge had been removed, and the opening in the barrier upon the roadway had been closed, and the town authorities liad refused to rebuild the bridge. Later in that month plaintiff’s wife had come home to visit her father and mother. She went out of the house at night for the purpose of visiting a friend. She attempted to take the usual pathway from the house to the highway over the bridge in question, and by reason of the removal of the bridge fell into the ditch and was injured. The learned trial judge was of opinion that the highway commissioner of the defendant town had violated no duty and dismissed plaintiff’s complaint.

From the exhibits in evidence it appears that the footpath was regularly graded and apparently much used. Whatever may have been the duty of the defendant town as to maintaining this bridge at this place, the jury might well have said that having maintained the bridge and having removed it, without any protection by light or barrier from this footpath, the town through its highway commissioner had failed to provide the protection that was owing to those having occasion to use the highway. The footpath, as well as the roadway and the accustomed ways between the footpath and the roadway, are a part of the highway, which it is the duty of the highway commissioner to protect. Having removed a bridge that had been used as part of a usual way between the footpath and roadway of the highway, it was clearly the duty of the highway commissioner to place such barrier that' those who had been accustomed to use the bridge might not walk into a trap and thus suffer injury. The failure of the defendant’s highway commissioner, therefore, to guard this access to the street should, we think, have been submitted to the jury for its determination as to whether such failure was a breach of defendant’s duty to plaintiff.

Mor do we'think the plaintiff’s wife as matter of law was guilty of contributory negligence. When living at home she had been accustomed to the use of this footbridge. She had come to the house after dark upon the night of the injury. It is true that she had been informed by telephone that the bridge had been taken away. She frankly says that she had forgotten it at this- time. These facts do not charge her with contributory negligence as matter of law. ( Weed v. Village of Ballston Spa, 76 N. Y. 333.)

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

All concurred, except Kellogg, J., dissenting.

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