
    Darwin Lee, Respondent, v. The Town of Berne, Appellant.
    
      Negligence — when a town is not chargeable because of a failure to rebuild a bridge— presumption as to funds—•defense of want of funds — duty, to protect the public against the use of the bridge.
    
    In an action brought against a town to recover damages sustained by the plaintiff in consequence of the breaking, on October 4, 1899, of a bridge which spanned a creek in the town, it appeared that on September 35 and 36, 1899, heavy rains flooded the creek and washed out the west abutment of the bridge, leaving the west end of the bridge supported by earth and stones upon which the bridge stringers had caught; that on September twenty-seventh the highway commissioner of the town examined many of the bridges in his district, including the one in question, and discovered that some twenty of them needed repair; that the next day he notified the supervisor of the town of the condition of the bridge in question and of other bridges, and asked him to call the town board together to grant permission to repair all of the bridges. The town hoard assembled, in pursuance of such a call, on October 3, 1899, and authorized the commissioner to make the necessary repairs. October sixth the abutment was rebuilt .and the bridge made safe. It did not affirmatively appear whether or not the commissioner had funds with which to repair the bridge immediately after discovering that it needed repair.
    
      Held, that it could not be said that the highway commissioner was negligent in not rebuilding the abutment sooner than he did;
    That the presumption that he had funds with which to repair the bridge at the time he discovered that it needed repair was repelled by the. fact that he took measures, by asking that the town board be called together, to acquire such . funds.
    
      Semble, that the statute (Laws of 1890, chap. 568, § 16) authorizing an action to recover damages sustained in consequence of a defect in a town highway to be ' brought against the town instead of against the highway commissioner of the town, did not change the rule which prevailed prior to the adoption of that statute, that a want of funds on the part of the commissioner with which to make the needed repairs constituted a defense to the action.
    
      Quaere, whether the highway commissioner could be charged with negligence on the ground that he did not sufficiently protect the public against the use of the bridge after it was condemned as an unsafe one.
    ■ Appeal by the defendant, The Town of Berne, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 17th day of December, 1900, upon the verdict of a jury for $150, and. also from an order entered in said clerk’s office on the 15th day of January, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    The plaintiff brought this action to recover against the town damaiges sustained by the breaking down of a bridge. He claimed that the bridge broke down by reason of the negligent omission of the commissioner of highways of such town to properly repair the same. The jury rendered a verdict for the plaintiff, and from the judgment entered thereon and from an order denying a new trial this appeal is taken.
    
      Lewis E. Carr and John D. White, for the appellant.
    
      John H. Dugan, for the respondent.
   Parker, P. J. :

Hpon the trial of this action the plaintiff claimed that the highway commissioner of the defendant was negligent in three different particulars, and evidence was given which he claimed tended to establish each.

The first one. was that the abutment of the bridge at its west end had been out of plumb since the spring of 1899, and was gradually leaning more and more towards the center of the stream, and that reasonable care and attention on the commissioner’s part would have discovered and repaired it before the flood of September twenty-seventh; and that, had it been so repaired, the abutment would not have been affected by such flood. This question was properly left to the jury, but if their verdict was to rest upon that claim alone I am of the opinion that it should not be sustained. The clear weight of evidence is against such claim.

The next particular was that, after the commissioner discovered on September 27, 1899, that the west abutment was washed out and that the bridge, at that end, was sustained merely by the hold which the stringers had upon the earth on which they caught, he did not properly and safely guard against the public’s using it in ignorance of its unsafe condition. Although there is no claim in the complaint that the negligence which caused the injury was an. omission to erect barriers sufficient to guard the public after the bridge had been condemned from using the same, yet both parties seem to have consented to that question’s being litigated, and it may fairly be considered as one of the issues tendered by the plaintiff, and one which it was proper to submit to the jury. An exception was taken by the defendant to two of the ¡impositions charged by the court upon that subject; but I do not examine them because I am of the opinion that the third claim of negligence made by the plaintiff and which the court submitted to the jury was not supported by evidence sufficient to warrant such submission. On September twenty-fifth and twenty-sixth there was a heavy rain, which caused a flood in the creek over which the bridge passed. The flood caused the west abutment to fall into the creek. That end of the bridge, however, did not fall; it was supported by' some earth or stones, upon which the stringers had caught, but such hold was not sufficient to support a load such as the plaintiff was carrying. On October fourth, when he drove upon it at the west end, it fell and caused the injury of which he complains.' When the plaintiff drove upon the bridge it was apparently .in good order, but in fact the stone wall that composed the abutment was gone, and it was held up by a trifling and insufficient support. On the twenty-seventh of September the commissioner examined many bridges in his district and discovered some twenty which were in need-of repair. He examined the one in question-on that day, and found the abutment gone. The overseer of that district had put up some rails across the road at that end of the bridge as a warning or barrier against traveling upon it; and the commissioner, on the next day, notified the supervisor of the town of the condition of it and other bridges, and asked him to call the town board together to grant permission to repair all of such bridges, under the emergency provisions of the statute (Laws of 1890, chap. -568, § 10, as amd. by Laws of 1899, chap. 84). The town board assembled in pursuance of such a call on October second, and authorized the commissioner to make the repairs made necessary by the storm, and on the sixth of October the abutment was rebuilt and the bridge made safe. The commissioner, does not testify that he had no money with which to repair this bridge immediately after he discovered that it was down. He offered to do so, but the evidence was excluded on the ground that no such defense had been pleaded. Concede that such evidence was properly excluded, yet it does appear without objection that he had twenty bridges to repair after that storm;. that he condemned this bridge as impassable, and took some measures to shut it off from public travel;' that he at once applied to the proper authority for leave to repair them all; that such permission was given him as soon as the board could reasonably be called together, and that as soon as such permission was given him he at once made the needed repairs.

Now, in the face of such facts, it cannot be said that he was negligent in not sooner rebuilding that abutment. He at once took the only steps that diligence required him to take, provided that he did not have sufficient funds; and it is not to be presumed that he did have enough, and that his calling upon the town board for assistance was an idle ceremony. In the absence of any proof as to why a commissioner lias not made the needed repairs it will not be presumed that he could not have done so; but when it appears that he at once applied to the town board for aid, and, as soon as permission was given him, did at once repair, it cannot be held that he was nevertheless negligent because peradventure he ma/y have had sufficient funds and could have proceeded without its aid. A presumption that he had funds is repelled by the fact that he took measures to acquire them. And so, notwithstanding the fact that it was not pleaded, the evidence received without objection establishes a complete defense against the claim that he should have repaired the bridge between the twenty-seventh of September and the fourth of October. It may be that negligence should be predicated against him for not sufficiently protecting the public against the use of the bridge after it was condemned as an u/nsafe one. But I am very clear that he should not have been charged with negligence for not having sooner repaired it after the abutment was washed away. Yet, at the request of the plaintiff, the trial court charged the jury as follows: “ Plaintiff’s counsel requested the court to charge that'it was the duty of the commissioner of highways to use due diligence, and that it is for the jury to say whether that diligence was observed when the notice was given and knowledge obtained eight days before the 'accident, with no effort to repair. Charged. Defendant excepted.” Here was a clear instruction that they might find the commissioner negligent for his delay of eight days in rebuilding the abutment. That delay occurred entirely under the circumstances above stated, and should not, therefore, warrant any such conclusion. We cannot say but that the jury based their verdict upon this ground, and hence the exception which the defendant then took to such charge was well taken and points to an error for which a new trial must be granted. The respondent claims that, since the statute allowing the action to be brought against the town, the fact that the commissioner was without funds to make the needed repair is no defense. This is not the law. Clapper v. Town of Waterford (131 If. T. 382) is a sufficient authority against such contention.

The judgment and order must be reversed and a new trial granted, costs to the appellant to abide the evént.

All concurred; Chester, J., not sitting.

Judgment and order reversed and new trial granted, with costs to appellant to abide event. 
      
      
         Laws of 1890, chap. 568, § 16.
     