Flansburg v. Town of Elbridge

• Decision Date: 21 May 1912
• Parties: FLANSBURG v. TOWN OF ELBRIDGE.
• Court: New York Court of Appeals Court of Appeals

205 N.Y. 423

98 N.E. 750

FLANSBURG

v.TOWN OF ELBRIDGE.

Court of Appeals of New York.

May 21, 1912.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by James Flansburg against the Town of Elbridge. From a judgment of the Appellate Division, Fourth Department (145 App . Div. 903,129 N. Y. Supp. 1122), affirming a judgment for plaintiff on a verdict, defendant appeals. Reversed, and new trial granted.

The action is to recover the damages resulting from personal injuries to plaintiff by reason of the negligence of the commissioners of highways of the defendant in failing to maintain a guard wall upon the north end of a culvert, within a public highway, from which plaintiff's horse fell. The jury might have found as the facts most favorable to the allegations of plaintiff:

The highway at the locality in question ran substantially east and west, but through several hundred feet just east of the culvert it deflected slightly toward the south. The plaintiff, driving a single horse hitched to a democrat wagon, was approaching the culvert from the east. The culvert bridged a creek, and was a stone structure surfaced with dirt. It was 22 feet 8 inches north and south an a part of and at right angles with the highway; and the distance from its east to its west edge was 12 feet. About 20 years prior to the accident, it was reconstructed; and there was built upon each end a guard wall of stone, about 2 feet in height and 28 inches wide. Between them was a level roadway of 18 feet. At the time of the accident, and through the 2 or 3 years last prior to it, a part of the north wall was gone by falling into the creek beneath. Its eastern 3 feet, approximately, were wholly gone, so that the surface of the roadway at that particular place extended to the northern edge of the culvert; through the 2 feet, approximately, next west it was about 6 inches high; through the next 2 or 3 feet it was about 12 inches high; and through the remaining part its original condition was intact. The bed of the creek flowing through it was, upon its north side, 7 feet 4 inches below the surface of the roadway upon it. The highway was in the country, had the ordinary dirt surface, and was largely used. Its roadway or traveled part was ‘turnpiked’ or crowned, so that it sloped either way from its center to a shoulder or grassy bank, the height of which is not stated; but the photographs in evidence indicate that, while apparent, it did not exceed 1 foot. At a point 86 feet east of the culvert, the width of the roadway or distance between the shoulders was 15 2/10 feet, 26 feet east of the culvert it was 15 feet, and 10 feet east of the culvert it was 13 1/2 feet. Its northern shoulder east of and contiguous to the culvert was a substantial distance further south than was the south side of the north guard wall. In other words, the north guard wall was outside to the north of the north bank or shoulder of the roadway. The roadway was smooth, solid, and in good condition. About 20 feet north of the north shoulder was a ditch, which extended from the creek easterly. The surface between the north shoulder and the ditch sloped, with more or less uneveness, toward the ditch and grass; weeds and bushes were growing upon it.

The plaintiff, driving westerly at about 9 o'clock in the night of September 30, 1908, was approaching this culvert. He had been over the road a good many times. He alone described the accident and in these words: ‘The wind was blowing awfully strong from the south. It was awfully cloudy; and it was a fleeting rain. When I got near this spot where I went off, it was a dense darkness. The horse made a stumble and went down on his-as I thought on his knees. I had the lines in both hands. He pretty nearly pulled me over the dashboard. He most rallied from that and went down again. Then the wagon and him and me all went. I was throwed clear over the wagon, I think.’ After the fall the plaintiff lay upon the north side of the ditch, 20 feet from the north shoulder of the roadway and 5 or 6 feet east of the eastern line of the culvert extended; the horse, still hitched to the wagon, was lying upon his side, about 5 feet north of the culvert, with his head in the creek, his feet toward the roadway, and his body extending easterly in the creek and up its east bank. The wagon, completely overturned, lay straight behind the horse, parallel with the roadway; its southern side being 4 feet from the north shoulder of the roadway, and its hind end about 12 feet east from the easterly edge of the creek. The commissioners of highways had funds available for the restoration of the wall or any reparation required. So far as appears, no accident had ever occurred upon the culvert or highway of any nature, caused by the demolition of the wall, and no complaint made concerning its condition.

At the close of the entire evidence, the trial court denied the motion of the defendant that the plaintiff be nonsuited, on the grounds that the proof failed to show negligence on the part of the commissioners of highways or of the defendant, or freedom from contributory negligence on the part of the plaintiff, and submitted the issues to the jury. Thereto the defendant excepted. The Appellate Division did not unanimously render its judgment.Leroy B. Williams, of Syracuse, for appellant.

William Kennedy, of Syracuse, for respondent.

COLLIN, J. (after stating the facts as above).

[1] Under the statutes, the defendant is liable to the plaintiff, provided his damages came by reason of a defect in the highway, existing because of the neglect of its commissioners of highways. Laws 1881, c. 700; Laws 1890, c. 568, §§ 16, 17; Laws 1909, c. 30, §§ 43, 74, 75 (Consol. Laws 1909, c. 25). The commissioners were under the statutory duty to care for and cause to be kept in repair the highways and bridges of the town (Laws 1890, c. 568, § 4); and the common law of this state gives a right of action against commissioners of highways, who act contrary to or omit to act in...