Bryant v. Town of Randolph

• Citation: 133 N.Y. 70,30 N.E. 657
• Parties: BRYANT v. TOWN OF RANDOLPH.
• Decision Date: 12 April 1892
• Court: New York Court of Appeals

133 N.Y. 70

30 N.E. 657

BRYANT

v.TOWN OF RANDOLPH.

Court of Appeals of New York.

April 12, 1892.

Appeal from supreme court, general term, fifth department.

Action by Samuel Bryant, as administrator of George A. Bryant, deceased, against the town of Randolph to recover damages occasioned by the death of deceased, resulting from a defective highway. From a judgment of the general term affirming a judgment at the circuit, defendant appeals.

Wm. H. Henderson, for appellant.

Frank W. Stevens, for respondent.

The other facts fully appear in the following statement by ANDREWS, J.:

This action was brought to recover damages occasioned by the death of George A. Bryant by the overturning of a wagon loaded with bark, on a public highway in the town of Randolph, on the 23d day of September, 1887. The deceased was a young man, 19 years of age, and on the morning of the day mentioned he started two miles south of the place where the New York, Pennsylvania & Ohio Railroad crosses the intersection of two public highways in the town, with a team and wagon, loaded with hemlock bark, to go to the village of East Randolph, which lies about two miles north of the railroad. The railroad was constructed in 1860, and crossed the two highways about 12 feet above their original grade. This rendered necessary the raising of the surface of each of the highways as they approached the crossing, both on the north and south, so as to enable travelers to cross the track of the railroad. The railroad company thereupon constructed embankments in the highway on each side of the crossing, 12 feet high at the intersection of the highways and the crossing, and descending northerly and southerly from thence until the original grade of the highways was reached. The embankments, from a point a few feet from the crossing, were 11 to 12 feet wide, and travel was practically confined to the space on the top of the embankments. The sides were left unguarded by any railing or other barrier. Owing to the angles at which the highways approached the crossing, a person driving from the south approached the crossing on a curve to the left, and on reaching the crossing was required to make a curve to the right, and then another curve to the left, in order to follow the road to East Randolph. The intestate reached the crossing on his way north, and, after passing over the crossing, drove so near the edge of the embankment that the right hind wheel of the wagon commenced to cut down into the loose gravel on the west side, and finally the wagon overturned, and the intestate received the injury of which he died. The intestate was seated on the top of his load on the right-hand side, just forward of the right hind wheel of the wagon, holding the reins, and in reach of a brake connected with the axle of the wagon, in which position he could see the tops of the horses' ears, but not their bodies. It appears that drivers sometimes sat in the position occupied by in the intestate, and sometimes near the front wheel, in which case they would operate the brake by means of a rope attached to the lever, and a loop in which the foot was placed. It was shown that the intestate was a careful driver, acquainted with the management of horses; that he was familiar with the road; and that the team he drove was steady and manageable. The traveled part of the embankment was firm 6 to 18 inches from the edge on the west side. It had rained from 24 to 36 hours before the accident, and it may be inferred that the side of the embankment was softened by the rain. Maps were introduced, showing the course of the wagon after it passed the crossing, as indicated by the tracks made by the wheels, and from which it appeared, as claimed by the plaintiff, that the horses were properly in the track, and that the wheels on the near side of the wagon both commenced to cut down in the beaten track, and that the front wheels remained in their proper position until, by the cutting down of the bind wheel more and more, the front wheels were drawn over, and the wagon overturned.

The claim to charge the town of Randolph is based upon the alleged negligence of the commissioner of highways in omitting to observe due care in protecting the embankment by a railing or barrier or otherwise, so as to render it safe for public travel. It was also claimed that in 1886 the commissioner of highways, in attempting to improve the road, had rendered it more dangerous than it was before. The embankments had continued as they were constructed in 1860 until 1886. It is not seriously questioned that the crossing was difficult and dangerous for loaded teams, by reason of the curves and the narrowness of the embankments. The plaintiff's counsel offered to prove that in repeated instances prior to the accident in question accidents had occurred to travelers and teams from the condition of the highway at this point, but the proof was excluded on the defendant's objection. It is conceded that the commissioner of highways had sufficient funds to make any reparation required. The jury found a verdict for the plaintiff, and the judgment entered thereon was affirmed by the general term.

ANDREWS, J., ( after stating the facts.)

The act of 1881 (chapter 700) imposes upon the several towns of the state liability for any damages occasioned to persons or property by reason of defective highways, in cases where theretofore the commissioner of highways of the town would have been liable. The general highway statute places upon the highway commissioner the ‘care and superintendence of the highways and bridges' in his town. 1 Rev. St. p. 501, § 1. It is the established rule in this state that where an individual sustains an injury by misfeasance or non-feasance of a public officer, who acts contrary to, or omits to act in accordance with, his duty, an action lies against such officer in behalf of the party injured. BRONSON, J., Adsit v. Brady, 4 Hill, 630. In accordance with this principle, prior to the act of 1881, a commissioner of highways...