King v. Village of Ft. Ann

• Citation: 73 N.E. 481,180 N.Y. 496
• Parties: KING v. VILLAGE OF FT. ANN.
• Decision Date: 21 February 1905
• Court: New York Court of Appeals

180 N.Y. 496

73 N.E. 481

KING

v.VILLAGE OF FT. ANN.

Court of Appeals of New York.

Feb. 21, 1905.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Isaac C. King against the village of Ft. Ann. From a judgment of the Appellate Division (85 N. Y. Supp. 1135,90 App. Div. 617) affirming a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed.

Vann, J., dissenting.

James H. Bain, for appellant.

Frank Talbot, for respondent.

O'BRIEN, J.

The plaintiff recovered a small verdict against the defendant for personal injuries which he received on September 27, 1902, while driving along one of the streets of the defendant, in a westerly direction, to the home of a friend who lived some distance beyond. The night was dark, and the plaintiff was driving a team consisting of two horses and a wagon. The plaintiff was engaged in the business of peddling gloves through the country in that vicinity.

The decision of the court below was not unanimous, and so this court is at liberty to review not only the exceptions taken at the trial, but the question whether the verdict is supported by any evidence. The defendant is a village corporation having a population of about 450 people. While the highway in questions, and upon which the accident occurred, is within the corporate limits of the village, it was practically nothing but a country road. It had four houses on one side of it, and five on the other. At the point in question the roadway is in good condition; the traveled portion being about 18 feet wide, and well graded. Between the graded part of the road and the ditch or gutter where the accident occurred there is a plot of grass from 6 to 7 1/2 feet wide. It appeared that the plaintiff's team left the traveled part of the road, and was proceeding upon the side of the road, where there was a ditch; and about 100 feet from the point where it left the roadway one of the fore wheels of the plaintiff's wagon dropped into a gutter, ditch, or hole on the side of the road. It seems that in the ditch or side of the road where the plaintiff drove his team there was a hole, which the witnesses describe as about 34 lnches deep, into which one of the wagon wheels ran. The plaintiff was thrown out of the wagon, and sustained injuries which, though not permanent, were substantial. On each side of the highway where the accident occurred were farms, and along the south side a rural cemetery, and the accident occurred opposite the cemetery. The evidence tended to show that the ditch and the hole into which the wheel of the plaintiff's wagon ran were caused by the fact that at that point there were a drain and a sewer, from which water was discharged and carried off farther on through the ditch. The evidence showed that, in the construction of highways in the country places, it is necessary to provide ditches or drains upon the sides of the highways, and that the highway in question was so constructed.

At the close of the plaintiff's case the defendant moved for a nonsuit upon the ground that the plaintiff had failed to prove a cause of action, or to show that the defendant was guilty of negligence or that the plaintiff was not guilty of contributory negligence, and on other grounds. The motion was denied, and the defendant excepted. This motion was renewed at the close of the whole case and denied, to which an exception was taken, and the court submitted the case to the jury. There is no dispute about the fact that the roadway itself was perfectly safe and in good condition, and, if the defendant is to be held liable, it must be upon the theory that it was its duty not only to keep the roadway in good condition, but also the whole space between the lines of the highway. In other words, it was bound to see to it that there were no ditches, holes, or other obstructions on either side of the roadway. There is no dispute about the fact that the accident occurred in consequence of the plaintiff's act in leaving the traveled road, and allowing his team to travel for 100 feet upon the side of the road, when he came in contact with the ditch and the hole into which one of the wheels of his wagon ran. The question is whether the officers of the defendant, in the exercise of ordinary care, were bound to anticipate and guard against such an accident as this. If so, there are very few country roads that can be held to be reasonably safe, since...