
    George Boyce, Respondent, v. The Town of Shawangunk, Appellant.
    
      Negligence — injury caused by the unsafe abutment of a bridge — vigilance required of the highway commissioner — liability of the town to one who had given notice of the defect —contributory negligence — burden of proof as to want of funds — §10,000 verdict not excessive.
    
    The failure of a commissioner of highways to exercise vigilance to discover the unsafe condition of the abutment of a bridge, which would have been apparent to him upon a careful examination thereof, constitutes negligence.
    In an action against a town to recover damages for personal injuries to the plaintiS, resulting from the fall of a portion of the abutment of a bridge, evidence that the commissioner of highways of the town, and a former incumbent of that office, upon being notified of the condition of the bridge, shortly before the accident, pronounced the abutment safe, after glancing at it from a. distance of a few feet, is, when considered in connection with evidence tending, to show that the defective condition of the abutment was apparent, and must, have existed for some time, and with the admission of the commissioner of highways that a closer inspection than he made was necessary, sufficient to-warrant a jury in finding that such commissioner was negligent.
    The fact that the plaintiff had given notice of the unsafe condition of the bridge.in Januáry or February, 1898, did not render him guilty of contributory neg- • ligence in attempting to drive a load of hay over the bridge on the 9th of April, 1898, as he was justified in assuming that the highway commissioner had performed his duty.
    The fact that the plaintiff did not alight from the wagon which he was driving upon discovering, when near the center of the bridge, that something was giving way, does not preclude a recovery, as a person suddenly placed in a position of peril is not chargeable with his mistakes of judgment.
    A want of funds by the highway commissioner with which to repair the bridge-is a matter of defense to be established by the defendant.
    A verdict of §10,000 in favor of the plaintiff will not be set aside as excessive where it appears that the latter, a young man who had a wife and child, and who was strong and in good health prior to the accident, sustained permanent injuries to his hip and kidneys, the effect of which was to break down his health and make him permanently lame, and which might eventually result in. his death.
    Appeal by the defendant, The Town of Shawangunk, from a-judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 11th day of" October, 1898, upon the verdict of a jury for $10,000, and also-from an order entered in said clerk’s office on the 15th day of Octo-. her, 1898, denying the defendant’s motion for a new trial made, upon the minutes.
    
      D. M. De Witt, for the appellant.
    
      John C. R. Taylor, for the respondent.
   Putnam, J.:

On the morning of the 9th of April, 1898, the plaintiff while proceeding with a load of hay drawn by a pair of oxen along a highway in the town of Shawangunk, Ulster county, N. Y., came to a bridge on said highway. He had made a seat of two boards in front of and projecting from the wagon about two feet, at the bottom of the hay, and seated thereon he attempted to cross the bridge. "While he was in the act of so crossing, some portion of the westerly abutment off the structure towards which he was driving gave way and fell, causing a hole in the highway at the edge of the bridge into which the forward wheel of the wagon fell, and the plaintiff was thrown off and sustained severe injuries, to recover damages for which this action is brought.

The usual questions are raised on this appeal: Was the defendant’s highway commissioner negligent in failing to repair the abutment? Did the plaintiff establish the absence of contributory negligence on his part ? Were the damages awarded to the plaintiff by the verdict for an excessive amount ?

We will consider first whether the evidence permitted a finding by the jury that the defendant’s highway commissioner was negligent in omitting to repair the abutment, the fall of which caused the accident.

That the abutment was in a dangerous condition at the time cannot be doubted; and from facts hereinafter adverted to, it must have been unsafe for some considerable period before it fell.

It was not necessary for the plaintiff to show actual notice to the commissioner of the unsafe condition of the abutment, if the circumstances were such that ignorance on his part was in itself negligence. (Hover v. Barkhoof, 44 N. Y. 113.) It was the duty of the defendant’s highway commissioner to inspect the roads and bridges in the town ; to exercise vigilance in that regard. (Mackey v. The Town of Locke, 28 N. Y. St. Repr. 281; Embler v. Town of Wallkill, 57 Hun, 384; 132 N. Y. 222, 227.) If the commissioner failed to exercise such vigilance, and hence to discover the unsafe condition of the abutment, which would have been apparent to him on a careful examination thereof, his ignorance of its condition was in itself negligence within the meaning of Hover v. Barkhoof (supra.)

It was shown on the trial that Mr. Hardenbergh, commissioner of highways of the defendant, received some notice of the unsafe condition of the bridge shortly before the accident, and that he and Mr. Ronk, a former highway commissioner of the town, on the previous nineteenth day of March had examined it. Mr. Hardenbergh testified that the abutment in question was then seemingly in good condition. Mr. Ronk also testified that, in his judgment, the abutment was then safe enough, although subsequently, in answer to the question “ When you left it you considered it safe?” He said, “Yes, sir, safe enough to stand until it fell down.” Had there been no other evidence tending to show negligence on the part of the highway ■commissioner except the testimony of the present and former commissioner of highways, as above stated, that on complaint of the ■condition of the bridge they shortly before the accident went and ■examined it, and the abutment that afterwards fell appeared safe, it would have been difficult to sustain the finding of the jury. But Mr. Hardenbergh, after his attention was called to the bridge, was bound not only to inspect the abutment, but to make a careful examination thereof. I think the evidence was such as to allow a finding by the jury that he failed to make a proper examination — failed to exercise active vigilance. Mr. Bonk, in regard to the examination of the abutment made on the nineteenth of March preceding the accident, testified as follows : At this time we did not examine the abutment very closely. We stood off four or five feet, took off some plank and looked at it. I did not give it much attention. He thought it would go. He thought it was safe and would go all night. It stood up all right at that time.” Mr. Hardenbergh, after stating on his examination that he and Bonk reached the conclusion that the abutment was safe, by simply passing within a few feet of it, and that that was all the examination ever made of the abutment at that time, or any 'other time, testified as follows : I thought at the time that all that was necessary to do in order to discover whether there are any defects in the abutments to a bridge was to jiass along 2 or 3 feet from it and glance at it as I could, but I think different now. I had only been commissioner nine days. I think now they need a little closer inspection. Since this .accident happened, I think that it probably would have been better to have made a closer inspection of that abutment. I don’t know as I reached this conclusion from the examinations that I made of the abutment after it fell. I didn’t see but a little bit of what had fallen.”

It appears, therefore, that the abutment of the bridge, on the 9th day of April, 1898, when plaintiff was injured, was unsafe; that Mr. Hardenbergh and Mr. Bonk examined the bridge on the precéding nineteenth of March. The testimony ¡permitted the jury to find that they did not make a careful or thorough inspection, as Mr. Hardenbergh practically concedes in his testimony.

But there was other evidence in the case which, if credited, allowed the jury to find that there were apparent defects in the abutment which, on a diligent and careful examination, the highway commissioner would have detected. The witness Cruver examined the bridge a year before the trial (October 5, 1898), or within two years, and testified in regard to the abutment as follows: “ It looked to me as if the one corner of the bridge on the right-hand side was cobble stones," and as if it was very near falling down. It looked about as if it was to fall, and I was really afraid of it. The stones were not very large — looked to be like cobble stones — not very good stones to build an abutment. * * * Yes, sir; it looked unsafe to me. I was led to this belief because some of the stones had fallen out in under the piece where those stringers went across the sill; some of the stones had fallen out under the sill, and more of them looked as if they were just about ready to fall out the minute you went on to them, and I was very careful about going over it.” Mr. Bonk testified as follows in regard to the abutment:. It was laid up dry; no very large stones; small stones, not very large; there were some pretty decent sized stones. It was a rough abutment on the side towards Ulsterville-—mo mason work. The stones were laid up loose, one upon another to the top, and there were .some sticks stuck in also. I suppose thqy were put in to hold the stones together. Well, at that time, I thought it looked kind of mean standing there in that shape and a nice abutment put up on the other side — nice mason work. It looked safe enough ; I couldn’t say nothing against it — only that it was laid up with loose stones and with sticks into it.” He inspected the abutment the morning of the accident and said in regard to it: “I stood right on the bank and looked right down at it. It was made up of not very large stone. The sticks that had been laid in at the time the abutment was put up to keep the stones up were rotten where they went back in the ground. Q. Did that cause the abutment to give way ? A. I think it had something to do with it. I wouldn’t swear positively what made it go down. It might have been something else. The stones would naturally take the place of those rotted sticks; having rotted away something would have to settle and that w'ould cause the abutment to fall. I couldn’t say that any stone had fallen out at the bottom of the abutment because the dirt and stones hacl fallen and covered it over. Q. And did things indicate there that the abutment had been in that condition for some time ? A. Well — Q. [Int’g.] It looked that way ? A. I can’t tell you about that, how long it had been that way. It might have been that way for a number of years. It looked as though it had. It showed it.”

The witness Evans stated in regard to the abutment: “ It looked as if it had been put up with unhammered stone, just laid up as we would lay up a stone wall and on the same principle about as a stone wall, and about the same sort of stone usually used there.”

The witness Little said: The abutment was built of what I should call common field stone. It had the appearance of a stone wall a good deal; built on the same principle as a stone wall — a dry wall. I didn’t call it a good job at first and still an old job ; that is, it wasn’t built of proper material; that is, what I am in the habit of seeing put in abutments of bridges.”

On the testimony above referred to, the jury were authorized to find, not only that the abutment was unsafe at the time of the accident, and must have been in that condition for a considerable period before the injury to the plaintiff, but that its defective condition was apparent, and that had the highway commissioner made a careful examination of the structure he could not have failed to discover that the abutment was unsafe.

The learned counsel for the appellant calls our attention to the case of Urquhart v. City of Ogdensburg (91 N. Y. 67) and kindred authorities. These authorities might be applicable had the accident occurred within a short period after the bridge had been built. But the structure had been made many years before. There was evidence showing that it was built like an ordinary stone wall, with sticks laid in it to keep the wall in place, and that the sticks had become rotten. It was probably safe when first erected, and for a reasonable time thereafter, but it was likely to become unsafe after the lapse of many years, and especially if the sticks used to strengthen it had become rotten, and, hence, there was a duty on the part of the commissioner to give it a careful inspection.

We reach the conclusion, therefore, that the question as to the negligence of the defendant’s highway commissioner was properly submitted to the jury, and that the evidence in that regard is sufficient to sustain the verdict. It is probable that the counsel for the appellant on the trial was of the opinion that the testimony hearing on the negligence of the commissioner was sufficient to submit to the jury, as on his motion for a nonsuit he raised no question in that regard.

It is claimed on behalf of the defendant that the plaintiff himself was negligent in driving his load of hay on the bridge, when the testimony shows that he was aware of its unsafe condition. The defendant’s witness Martin testified to an admission of the plaintiff tending to show his knowledge of the condition of the abutment in the fall prior to the accident. The witness Robert Marks said that in the spring of 1897 the plaintiff requested him to tell the highway commissioner of the town that the bridge was unsafe. Mr. Dickinson, the supervisor of the defendant, stated a conversation with the plaintiff in January or February before the accident, in which the latter complained of the condition of the abutment, and was afraid it would fall down in the spring, and asked Mr. Dickinson to see the highway commissioner about it. Assuming that such testimony was credited by the jury, it did not necessarily show negligence on the part of the plaintiff. Having given notice of the condition of the bridge, the plaintiff, at the time of the accident, could rely upon the fact that the town authorities had performed their duty in regard to the structure without negligence being attributed to him. That duty is stated in Hover v. Barkhoof (supra) as follows: “ Defective bridges are dangerous, and travelers generally have no means of knowing whether they are safe or not. They have to rely upon the fidelity and vigilance of the highway commissioners, who are the ■only persons whose duty it is to see that the bridges are in repair. The burden imposed upon these officers by this rule is not too great. All it requires of them is that they shall, with reasonable care and fidelity, discharge the duties which they have solemnly sworn to perform.” The supervisor testified that the plaintiff made his complaint in January or February, 1898. Assuming, then, that the plaintiff thought the structure unsafe, it was allowed to remain open for public travel by the town authorities. Can we determine that the plaintiff was negligent in assuming that the officers of the town had performed their duty and made a proper inspection of the structure, and relying upon their judgment that it was safe ?

In Taylor v. Town of Constable (57 Hun, 371, 374), the case of an accident occurring in consequence of a defective bridge, where it was shown that the plaintiff had more knowledge of its condition than the plaintiff in this case is shown to have had, Learned, J., in his opinion, said: “ The argument of the defendant is, that if the-defendant was negligent in not repairing, then that the plaintiff had the same knowledge with the commissioner and was, therefore, negligent in crossing. But we think that argument is not sound. The responsibility is with the commissioner. He must exercise his judgment and see that the bridge is safe, and when he leaves the bridge open for public travel he practically asserts to the public that the bridge is safe. The traveler has a right largely to rely on this opinion of the officer entrusted with such an important duty.” On the second appeal of that case (61 Hun, 622), the opinion being published in 15 New York Supplement, 795, the doctrine so stated was reaffirmed, and this decision was affirmed on the opinion of the General Term by the Court of Appeals. (131 N. Y. 597.)

But in his testimony on the trial, the plaintiff controverted the testimony of the witnesses above mentioned. He admits that he spoke of the defective condition of the bridge from time to time, but claims that he did not tell the supervisor that it was liable to-fall. He did not think so. He testified as follows: “ I did not. think it was a defective bridge because I supposed the overseer of the highway had made it right. He had been at work there. Prior to the accident I supposed the bridge was in a defective condition, and wanted looking after by somebody. Our roadmaster had worked, on the bridge and repaired it. He fixed the plank. The commissioner had been there and made an examination and didn’t shut it up,' and I supposed it was all right.” Again he said: “ I never supposed it was dangerous.” We must assume that the jury believed the testimony of the plaintiff in regard to his knowledge of the condition of the abutment, and the evidence is not so preponderating in that regard in favor of the defendant as to authorize us to set aside the verdict.

As the jury must have found that the plaintiff was not aware of the dangerous condition of the abutment .when he drove upon the bridge, under the testimony we cannot determine that he was negligent in remaining on the seat of the wagon instead'of walking-beside the oxen. All that the defendant’s witnesses proved in that regard was, that one driving in a dangerous place should walk by the side of the oxen. Unless the plaintiff ivas cognizant of the danger, he could not be deemed negligent in not doing so.

Nor does the fact that the plaintiff, when near the center of the bridge and discovering that something was giving way, did not alight from the wagon, prevent a recovery. He was suddenly placed in a position of peril, and, although he made a mistake, may recover: The doctrine applicable to such a situation is stated in Dyer v. Erie Ry. Co. (71 N. Y. 228-235) as follows: “The danger being imminent, the law does not demand that accuracy of judgment which would be required under other circumstances; and the authorities hold that in such cases an error of this description is not fatal to a recovery, and does not relieve tire defendant from liability. (Twomley v. C. P., N. & E. R. R. R. Co., 69 N. Y. 158; Coulter v. Am. M. U. Ex. Co., 56 id. 585; Buel v. N. Y. C. & H. R. R. R. Co., 31 id. 314.)”

We conclude that the finding of the jury as to the absence of contributory negligence on the part of the plaintiff was sustained by the evidence.

The amount of the recovery was large, but on a careful review of the testimony we are unable to say that it was excessive. The plaintiff is a young man with a wife and child, and previous to the accident was strong and in good health. Three physicians were sworn on the trial as to the extent of his injuries and their testimony was not contradicted. Dr. Merritt, among other things, testified to an injury to the plaintiff’s hip joint and kidneys. He said : “ The man cannot walk without limping and hurting him and without the use of crutches. * * * My judgment as to the permanency of the condition of the hip is that it may be resisted but it cannot be cured. It may in future time be broken dovm and go on and inflammation set up again and anchylose that joint. That would be the natural result without treatment. Not Inevitably, not always, but it follows with reasonable certainty: * * * His general condition isn’t good now; he is broken down; he is an injured man—Injured for life, permanently injured. .* * * The injury to the kidney may be resisted, but it is generally progressive. Chronic inflammation follows, yet it may be resisted for a number of years. As the man passes middle life and grows old these things, if any of them are resisted,' are apt to come back.” Hr. Beakes testified to the same state of facts, and to the permanency of the injuries received by the plaintiff, that he would be permanently lame. He also testified to an injury to the rectum and said: “ He will never get over that. His general health is poor. He is generally broken down.” The testimony of these two witnesses is fully corroborated by Hr. Neal. The latter testified as to the injury to the plaintiff’s kidneys. He said: “It is already diseased and I think it will be permanent. The eventual result will be that he will lose the action of the kidney; he will die. With the destruction of the kidney, a diseased kidney on the •other side, he will die. It also has the effect of impairing his health to a very large extent.”

With such testimony in the case uncontradicted we cannot deter- . mine that the verdict was for an excessive amount.

One of the grounds stated by the defendant on the motion for a nonsuit was that the plaintiff had not shown the possession of funds by the commissioner of highways of the town to repair the bridge before the accident. But the want of funds by the highway commissioner with which to repair the bridge was a matter of defense to be established by the defendant. (Whitlock v. Town of Brighton, 2 App. Div. 21; Quinn v. Town of Sempronius, 33 id. 70, 75; McMahon v. Town of Salem, 25 id. 1.)

We have examined the several exceptions taken by counsel for the appellant, to the exclusion of testimony offered by the defendant on the trial, and are of the opinion that neither of such exceptions require a reversal of the judgment.

Without deeming it necessary to discuss other positions taken by the learned counsel for the appellant, we reach the conclusion that although the jury on the testimony introduced by the parties might well have reached a different conclusion from that arrived at, nevertheless it is not a case where we should be justified in setting aside the verdict as unsupported by the evidence, and, hence, that the judgment and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  