Ivory v. Town of Deer Park

• Citation: 22 N.E. 1080,116 N.Y. 476
• Parties: IVORY v. TOWN OF DEER PARK.
• Decision Date: 26 November 1889
• Court: New York Court of Appeals

116 N.Y. 476

22 N.E. 1080

IVORY

v.TOWN OF DEER PARK.¹

Court of Appeals of New York, Second Division.

Nov. 26, 1889.

Appeal from supreme court, general term, second department.

Lewis E. Carr, for appellant.

John W. Lyon, for respondent.

BRADLEY, J.

The action was brought, pursuant to chapter 700, Laws 1881, to charge the defendant with liability, and to recover damages for personal injuries of the plaintiff, alleged to have been occasioned by the negligence of the highway commissioners of that town. The cause of the plaintiff's complaint was that the commissioners failed to provide any barrier along the highway, at the place in question, for the protection of travel, and that in consequence of such failure the plaintiff, in the evening of November 18, 1881, in driving along there in a wagon, fell into an excavation, and was injured. It was dark. The plaintiff was not familiar with the road. He was on his way from Cuddebackville to Port Jervis, in the town of Deer Park; and, in going southerly down a descent in the highway, the horses he was driving, instead of following the curve to the left in the beaten track, continued straight forward, and, with the wagon in which the plaintiff was riding, went over the edge of the excavation, and down about seven feet.

The main question upon the merits is whether there was any evidence to support the conclusion that the injury so occasioned to the plaintiff was attributable to the negligence of the highway commissioners. The road had been used as a highway for a great many years, although it does not appear to have been laid out as such, in the manner provided by statute. But in 1848, the road having been used as a highway for 20 years, the commissioners sought to have it ascertained, described, and entered of record in the town clerk's office, pursuant to the statute. 1 Rev. St. p. 501, § 1, subd. 3. They did make an order, which was so recorded. The excavation into which the plaintiff was precipitated was made in or about the year 1870, for the purposes of the construction of the Monticello & Port Jervis Railroad, along there. Prior to that, there could have been no reasonable apprehension of danger at that point of the road to the public travel. The edge of the embankment so made by the cut was about 11 feet from the beaten track, between which and it there was no ditch and no barrier of any kind, but the surface was uninterruptedly continuous, and its smoothness substantially unbroken, from one to the other. This had remained so from the time the excavation was made, which was about 11 years before the accident in question. The boundaries of the old road, as used there prior to 1848, do not very clearly appear, although there was evidence tending to prove that there was a stone wall on either side, and that the one on the easterly side was between the beaten track and this cut, and that this wall was taken away in 1849 or 1850, and thereafter, until the excavation was made for the railroad, there had been no interrupting physical boundary between the beaten way and the canal, beyond the place so excavated. It appears by the evidence that on the west side of the beaten roadway, and 20 feet from the edge of the embankment, was, at the time in question, a ditch, and a few feet west of that were the remains of a stone wall, and five or six feet west of the old wall was a board fence. The beaten track was 16 feet side, and beyond, a short distance southerly from this place, the remains of old walls indicate that the boundaries had been about two rods apart. The order before referred to, made by the commissioners in 1848, described a line by courses and distances from certain monuments, and declared it the center of a road three rods in width; but where that line was located, in reference to the beaten track, does not appear by the evidence. The order could not have the effect to increase or change the width or location of the highway from what it was before. It could be effectual only as a description of the width, as manifested by the permitted use for 20 years. People v. Judges, 24 Wend. 491;Talmage v. Huntting, 29 N. Y. 447. The order itself has no material importance in this case.

The fact that this road had been used for the public travel many years, and had been recognized and treated by the constituted authorities of the town as a highway, gives that character to it, for the purposes of making the defendant responsible to a traveler upon it, for injuries sustained by him in consequence of the negligence of the commissioners in failing to keep it in suitable condition and repair. Sewell v. City of Cohoes, 75 N. Y. 45.

If the situation was such as to render the travel upon the road at the place in question dangerous, and such danger within reasonable apprehension, the duty was with the commissioners to use the means available to them for the purpose, to guard against the hazards to which the traveler was exposed. The question upon the trial, therefore, was whether the excavationwas so near the wrought portion of the road as to render it dangerous to the public travel, in view of the situation there. Jewhurst v. Syracuse, 108 N. Y. 303, 15 N. E. Rep. 409. It is presumable that people may travel on the highways in the night-time, when the beaten path is obscured from view. At the place in question there seems to have been nothing to indicate, in the darkness, the curvature of the road, or to render the driver of the team sensible of the departure from it before reaching the place of danger. There is no complaint that the 16-feet track was not adequate width for travel. The wrought portion of highways in rural sections usually embrace but a portion of the width within their limits. The commissioners are required to use reasonable care only. They do not insure the traveler against injury. And what is such care depends upon circumstances. They are to be advised of dangerous conditions, or to be chargeable with negligence in not having...