
    William W. Finkle, Appellant, v. The Village of Valatie, Respondent.
    Third Department,
    June 27, 1906.
    Village — negligence — injury received on temporary way made necessary by obstructions in regular highway-—when village liable.
    A village which negligently allows a highway under its control to remain impassable through the accumulation of ice and snow so that it becomes necessary for the public to pass the obstruction by adopting a temporary way over private property is liable for injuries received on the temporary highway by reason of an obstruction placed therein by the owner, of which obstruction the village had notice.
    It was the duty of the village either to open the original highway or to warn or guard the,public against impending danger on the temporary way.
    Chester, J., dissen ted.
    Appeal by the plaintiff, William W. Finido, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Columbia on the 5th day of December, 1905, upon the decision of the court, rendered after a trial at the Columbia Special Term, sustaining the defendant’s demurrer to the complaint herein.
    The complaint alleges that there is located within the corporate limits of the defendant village a highway known as Chatham street, which for many years has been maintained by the defendant as a part of its highway system; that for a month or more prior to March 3, 1905, a portion of said street in front of the premises of the Valatie Knitting Company had been wholly obstructed by ice and snow, -which rendered said street impassable for vehicles; that the defendant had been repeatedly notified of such obstruction and that the street was impassable by reason thereof and it had been requested to remove the same, but it negligently allowed such accumulation of ice and snow to remain and negligently refused to remove the same and make the street passable; that by reason of such obstruction and continuously for the time mentioned persons traveling with vehicles on said Chatham street left said street at the place where the same was impassable and traveled around such obstruction and impassable portion of the street over the property of the Valatie Knitting Company and used the property of said knitting company as a highway for such a distance as w¡is necessary to avoid such obstruction and had so continuously used it as a highway for a month or more prior to, March 3, 1905, with the full knowledge of the defendant; that on the day mentioned the plaintiff traveled with his horse and wagon over the- property of the knitting company which Avas temporarily used as a higlway as aforesaid and returned after dark on the evening of the same day ; that intermediate the time Avhen he first traveled over the property of the knitting company as aforesaid and his return the knitting company had placed a box or other obstruction in such temporary Avay over its property with Avliich box or obstruction the plaintiff collided and was injured; that prior to the time when plaintiff was in jured the knitting company had duly notified the defendant that said knitting company Avas about to place said obstruction on its said property at the place Avhere the same was being used as a highway, and that the defendant did not remove the same' or place any light or other Avarning at or about said place for the protection of travelers on Chatham street or said highway on the property of said knitting company; and that the injury of plaintiff was caused by the negligence of the defendant and its officers and without negligence on the part of the plaintiff who did not know of the obstruction to the temporary way and who by reason of the darkness was unable to observe and avoid the same. The defendant by demurrer challenges this complaint on the ground that it does not state facts sufficient to .constitute a cause of action.
    
      Frank S. Becker, for the appellant.
    
      E. R. Harder, for the respondent.
   Cochrane, J.:

The defendant is incorporated under chapter 414 of the Laws of 1897, known as the Village Law.” By section 141 of said law the streets and highways pf a village “are under the exclusive control and supervision of the board of trustees.”

In Nelson v. Village of Canisteo (100 N. Y. 89) it is said : “It has been so uniformly and frequently held by the courts of this State that a municipal corporation, having power to maintain and control streets, is bound to exercise ordinary and reasonable care and diligence to see that they are kept in a reasonably safe condition for public travel, that a general rule to that effect may now be considered as established and to be applicable, whether the act or omission complained of and causing the injury was that of the municipal authorities or some third party.”

The fair meaning of the complaint is that by reason of the obstructed highway, public travel had been diverted around the obstruction and over the property of the knitting company and that this latter way was used for the time being as a public highway with the knowledge and acquiescence of the defendant. More than that, if this complaint is true, the village by its wrongful omission to remove the obstruction from its public street had practically forced the public to use as a highway the property of the knitting company. The duty of the defendant to the public was to remove the obstruction from its highway, and failing in that duty it cannot escape responsibility for reasonable care and watchfulness in reference to the temporary highway, which by reason of its negligence was necessarily used and which it compelled the public to use because of the obstruction in the highway proper which it negligently permitted to exist. The knitting company notified the defendant that it intended to obstruct the temporary road over its premises. It then, clearly became the duty of the defendant either to remove the obstruction which it had wrongfully permitted to exist in the highway proper for a period of at least a month, or to take some measures to warn the public of the danger of passing over the temporary road. This is not a case where an accident happens without a reasonable opportunity for the municipality to guard against the same.

While we have not been referred to any authority in this State involving the question now under consideration, the precise principle has been determined in Vermont adversely to the defendant in several well-considered opinions in cases not as aggravated as this case, inasmuch as in those1 cases the regular highways were unavoidably impassable. (Dickinson v. Town of Rockingham, 45 Vt. 99 ; Batty v. Town of Duxbury, 24 id. 155; Willard v. Town of Newbury, 22 id. 458.)

It would be indeed a strange doctrine if a village could wrongfully suffer its highway to remain obstructed, force the public to adopt and use a way around the obstruction, knowingly permit this latter way also to become dangerous, take no measures either to open the original highway or to Warn or guard the public against impending danger, and then escape liability for an accident on' the theory that the accident happened on private premises by reason of an obstruction placed thereon by the owner of the premises. That is this case-according to the plaintiff’s complaint.

It is of course impossible to determine in advance of the trial what the facts are in reference to this controversy. But the plaintiff should have an opportunity to establish if he can to the satisfaction of a jury the allegations of his complaint.

The interlocutory judgment must be reversed, with costs, and the demurrer overruled, with costs, with the usual leave to defendant to withdraw the demurrer and to answer on payment of such costs.

All concurred, except Chester, J., dissenting.

Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with usual leave to defendant to withdraw demurrer and answer on payment of such costs.  