
    Thomas Kelly, as Administrator, etc., of Michael P. Kelly, Deceased, Respondent, v. The Town of Saugerties, Appellant.
    Third Department,
    January 8, 1906.
    Negligence — death of driver from breaking of bridge — Highway Law — excessive load —verdict against weight of evidence.
    A verdict against a town for the death of a driver caused by the breaking of a bridge on a highway will be reversed when the evidence shows that the weight of the driver, together with tools, wagon and a load of bluestone thereon, as determined by a pair of scales which had been repaired six months before the accident and were shown to have been tested and found correct six months after the accident, was over four tons, since a town is exempt from liability under section 154 of the Highway Law when a bridge breaks by reason of a weight of four tons or over.
    When such evidence of the accuracy of the scales has been given and there is no evidence that they had been altered from the time they were repaired to the time said test was made, a verdict for the plaintiff cannot' be founded'on evidence that prior to the repair of the scales aforesaid and when they were located in another place they had been found to be inaecurate.Expert testimony as to the weight of bluestone per cubic foot, founded solely on the «measurement of trimmed stone and not taking into consideration the portion of said stones left in the rough or the weight of bluestone .from the particular quarry in question, is insufficient to discredit the evidence as to the weight of said stone as shown by actual test.
    Appeal by the defendant, The Town of Saugerties, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 14th day of July, 1905, upon the verdict of h jury for $5,000, and also from an order entered in said clerk’s office on the 15th day of July, 1905, denying
    the defendant’s motion for a new trial made upon the minutes. The action is to recover damages for the death of plaintiff’s intestate, caused, as it is claimed, by the negligence of the highway commissioner of defendant town in failing to keep in repair a bridge upon one of the highways of said town. The defenses relied upon were: First, that the bridge was not upon one of the highways of the said town ; second, that the highway commissioner was not guilty of negligence ; third, that the load which was-being transported over the said_bridge exceeded four tons in weight. These questions were all submitted to the jury and have been resolved in favor of the plain- . tiff. From the judgment 'entered upon the verdict and from an order denying a motion for a new trial this appeal has been taken.
    
      John J. Linson, for the appellant.
    
      John W. Searing, Carroll Whittaker and William D. Brinnier for the respondent.
   Smith, J.:

By section 154 of the Highway Law (Laws of 1890, chap. 568) it is provided that “ No town shall be liable' for any damage resulting to person or property by reason of the breaking of any bridge, by transportation on the same, of any vehicle and load, together weighing four tons or over.” The plaintiff’s intestate was driving a load of stone across the bridge from the quarry of one Van Steenbergh. Four horses were drawing the load. The horses had just passed over when the bridge fell. Upon the wagon was the weight of the stone, the weight of' plaintiff’s intestate and the weight of the tools that Were "thereupon. That plaintiff’s intestate weighed 137 pounds, that the wagon itself weighed 1,675 pounds, that the tools weighed 60 pounds, does not seem to be questioned. The contest arose upon the weight of the stone itself which was upqn the wagon. Shortly after the accident one Harry Wells, apparently a disinterested witness, went into the creek below where the bridge fell and took out, six twenty-inch pieces of curbstone, one five by sixteen-inch piece of curb, one four by sixteen-inch curb, and one twenty-inch corner. This makes-nine pieces. Thereafter he was told that there were ten pieces upon the load and went back and under the water found one more four by sixteen-incli curb. Little question seems to be- made tliat the nine pieces first taken out were upon the load that was being transported. . Some, question is made as to whether the ténth piece was upon that load. The fact that it was, howevpr,. seems to us to be-demonstrated by the testimony of Ernest Van Steenbergh, the son of the owner of the quarry from where this stone came: He swear's that there were two four by sixteen-inch cmb pieces 'and this piece is necessary to make a second piece of that measure,' Furthermore, this piece was pointed out to Van Steenbergh, who identified it as one of the pieces that was upon the Igftd that rugrnipg. The weight of the stone upon the scales ■ amounted to 6,200 pounds. This, together with the weight of the wagon, the man and the tools, brings the weight of the stone, wagon and its contents as 8,072 pounds, or more than four tons.

The force of this evidence is sought to be broken by two classes of evidence. First, it is claimed that the scales were not true. The only evidence of that fact is the evidence of one witness' who swears that some years prior thereto he had weighed horses- upon the scales and that the weight varied, depending upon the place in which the horses stood upon the scales. This is denied by Wells, but the fact also appears that this was while the scales stood in front of the store of one Gray. "In December, 1903, the scales had been removed to the house of the said Wells and there put in shape, and in December, 1904, just prior to the trial, these scales were tested by the county sealer of weights and measures and found to be accurate. This stone was weighed in June, 1904, prior to this test. The evidence, however, is to the effect that the scales had not been altered in any way after that time. In view of these-facts, even if the jury should have'believed the testimony that the scales were untrue while they were located in front of the store of Gray, they are not authorized to" reject the testimony of the weight after the scales were removed and placed where they -were afterwards legally tested and found to be accurate. The second class of testimony adduced in answer to", the defendant’s proof is the testimony of certain .witnesses to the weight of a cubic foot of bluestone. From the measurement of these stone they claim that the weight of the stone upon the load was about 5,700 pounds, instead of 6,200 .pounds. These witnesses, however, do not claim to have weighed this stone or to have weighed any stone from this quarry. Their testimony is as to the weight of an exact cubic foot of bluestone as I understand. It is common knowledge that stone prepared for curbing is not entirely trimmed to exact measurement. The part that-naturally would go under ground is usually, if not always, left in the rough, and the "actual weight of the stone is considerably more than it would be if the stone were trimmed to the exact dimensions called for. This fact renders the abstract evidence as to the weight of a cubic foot of bluestone of little value. The evidence of Wells as to the actual weight of this stone upon scales which were thereafter tested and found to be -correct, cannot be arbitrarily ignored by the jury or discredited. The stone was -at. the time of the -trial within fifty feet of those scales, and if Wells’ testimony had been doubted by the plaintiff, it could have been easily disproven if untrue. . . , • ^

We have assumed in this discussion that, the statute refers to the weight of the load which was upon the bridge between -the abutments. We have not considered the additional weight to the load by reason of the weight of the blackboard and the man in the. buckboard. ' That buckboard was. fastened to the stone wagon by an eight-foot chain. - In view of this fact it is difficult to understand why the two front wheels of the buckboard at least were not upon the span of the bridge between the abutments at the time that the bridge fell. If so, such additional weight as that would give must be added to the weight of the'stone Wagon in determining what Weight was being transported over the bridge. We are of the opinion that the load-being transported over the bridge was demonstrably of more'than four tons in weight, and that within the- provision of the statute. quoted the town is, therefore, relieved from liability for this accident.

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

All' concurred.

Judgment and order reversed and new trial granted, with costs to appellant to ubide event. ' ‘ •  