Getty v. Town of Hamlin

• Decision Date: 21 April 1891
• Citation: 127 N.Y. 636,27 N.E. 399
• Parties: GETTY v. TOWN OF HAMLIN et al.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 636

27 N.E. 399

GETTY

v.TOWN OF HAMLIN et al.

Court of Appeals of New York,

Second Division.

April 21, 1891.

Appeal from supreme court, general term, fifth department.

Cassius C. Davy, for appellants.

J. D. Decker, for respondent.

PARKER, J.

This action was brought to recover damages which the plaintiff insists were occasioned by a defective highway. At the point in question Sandy creek is on the boundary line between the town of Hamlin, in the county of Monroe, and the town of Kimball, in the county of Orleans, over which a bridge is constructed which constitutes a part of the highway leading from one town into the other; and because of such situation it is asserted that by statute the towns are jointly liable to keep such bridge and its approaches in repair, and for a failure to perform that duty they are liable to respond in damages for such injuries as may have been occasioned because of an omission to perform such obligation. The complaint alleges that on and prior to the 26th day of April, 1884, the date of the happening of the accident, the highway on the north end or side of the bridge was greatly out of repair, the abutments of the bridge having become dilapidated and fallen out, so that there road-bed in the highway supported and kept in place by the abutments was caved in, broken out, and greatly impaired; that there were great holes in the highway made by the earth caving in and sliding out of the road-bed, caused in part by the impairment of said abutments, so that said bridge and approaches were in an unsafe and dangerous condition for travel. The answer denied that the approaches to the bridge and the bridge were in an unsafe and dangerous condition for public travel at the time of the accident, and that question was sharply litigated on the trial. As to the happening of the accident, the plaintiff testified: ‘Before I got to the bridge I observed on the west side of the road a pile of stave-bolts piled up perhaps six feet or thereabouts. Before I passed the stave-bolts I saw the bridge, and saw, as I came opposite this pile of stave-bolts, that the bank had slid off on the east side of the embankment at the north end of the bridge. I reined my horses to one side of the road as far as I could, and I was driving with the greatest of care to avoid this hole, because the approach to the bridge is very narrow. As I approached the stave-bolts I came opposite a pile of sand piled over in the lot,-white sand, lake sand, I suppose,-on the west side of the road, on the north side of the creek. Just then my off mare shied violently and suddenly against the other one, and crowded her across on the east side of the road, and she stepped her leg into this hole, and they both sprang on the bridge on the jump, and the wheel came against the bridge timber, which was exposed six or eight inchese. I remember nothing more....