Lane v. Town of Hancock

• Decision Date: 05 June 1894
• Citation: 142 N.Y. 510,37 N.E. 473
• Parties: LANE v. TOWN OF HANCOCK.
• Court: New York Court of Appeals Court of Appeals

142 N.Y. 510

37 N.E. 473

LANE

v.TOWN OF HANCOCK.

Court of Appeals of New York.

June 5, 1894.

Appeal from supreme court, general term, third department.

Action by Marvin Lane, as administrator of Sarah A. Lane, against the town of Hancock, to recover for the death of plaintiff's intestate, resulting from defendant's negligence. From a judgment of the general term (22 N. Y. Supp. 470), defendant appeals. Reversed.

Isaac H. Maynard, for appellant.

T. F. Bush, for respondent.

O'BRIEN, J.

The plaintiff was the husband and is the administrator of Sarah A. Lane, who was killed on the 28th of March, 1888, by an accident resulting, as is claimed, from a defect in one of the public highways of the town. It is claimed that the defendant is responsible for the demanges resulting from the death, and this action was brought to enforce the liability. The plaintiff recovered a verdict for $1,000, upon which judgment was entered, and it has been affirmed at the general term.

By chapter 700 of the Laws of 1881, the primary responsibility for injuries to person or property, resulting from defects in the highways, was transferred from the commissioner of highways to the town. The negligence of the commissioner is still the basis of the liability, and the town if now liable for his neglect only in the cases where he was liable himself before the statute was enacted. He is still liable over to the town for any judgment recovered against it by reason of his negligence or want of care in the performance of his duties imposed upon him by the statute. So that now, as before, the inquiry is in regard to the conduct of the commissioner, and the manner in which he has performed his duties. Actions to recover damages resulting from injuries caused by defects in the public highways are of comparatively modern origin. As late as the case of Garlinghouse v. Jacobs, 29 N. Y. 297, the whole subject of the liability of the commissioner in such cases was elaborately examined, and it was held that he was not liable under any circumstances. Subsequently, the court receded from this position, in Robinson v. Chamberlain, 34 N. Y. 389; and in the case of Hoover v. Barkhoof, 44 N. Y. 113, the liability of the commissioner for such injuries, when resulting from his own negligence, was asserted and established. Such actions are now quite common, as indicated by the numerous cases to be found in recent reports. Ivory v. Town of Deerpark, 116 N. Y. 476, 22 N. E. 1080;Maxim v. Town of Champion, 50 Hun, 88, 4 N. Y. Supp. 515;Id., 119 N. Y. 626, 23 N. E. 1144;Bryant v. Town of Randolph, 133 N. Y. 70, 30 N. E. 657;Clapper v. Town of Waterford, 131 N. Y. 388, 30 N. E. 240;Glasier v. Town of Hebron, 131 N. Y. 447, 30 N. E. 239. While, in theory, the town is not liable except in cases where the commissioner was or would be liable himself, yet it cannot be doubted that the practical working of the statute has been to enable parties, in some cases, to recover verdicts against the town where none would have been rendered against the commissioner, personally, on the same facts, Although, by the second section of the act, the commissioner is made liable over to the town for any judgment that it has been compelled to pay in consequence of his misconduct or neglect, yet such actions are seldom if ever brought, or, if brought, are not successful. In reviewing this judgment the liability of the commissioner as it existed berore the statute, and as it now exists, when a recovery has been had against the town, must be held to be the true test. The judgment cannot stand unless the facts show, or tend to show, that the commissioner was guilty of such negligence in the performance of his official duty as would render him liable to the town for the judgment which has been recovered against it. Courts and juridical writers have often attempted to give a comprehensive definition of the term ‘negligence,’ as used in the law. But no definition has yet been given, and it is obvious that none can be given, accurate and comprehensive enough to apply to the varying facts and circumstances of every case. When applied to a commissioner of highways, and for all the purposes of this case, it may be defined as the omission on his part of use ordinary care, under all the circumstances, in the performance of the duty imposed upon him by law, which was the proximate cause of the accident resulting in the death of plaintiff's intestate. ‘Ordinary care,’ in its application to this case, denotes such care and conduct on the part of the commissioner as a reasonable and prudent person would ordinarily have exercised under the circumstances of the situation. Railroad Co. v. Jones, 95 U. S. 439. In order to determine whether, in this case, the commissioner was guilty of negligence, or exercised such care, the whole situation, and all the facts and circumstances, must be kept in view. There were three commissioners, and upwards of 230 miles of road, about 80 miles of which was along dugways, and up steep ravines. There were 169 plank bridges, and several hundred sluices. The road where the accident occurred passed through a mountainous, wooded section, and is used mainly for drawing heavy loads of lumber and wood, and but two or three families live upon it, for a distance of some five miles. The road had been built more than 20 years before, under contract, and accepted by the commissioners, and no claim is made that it was not properly constructed. It ran along the side of a steep hill, with a perpendicular retaining wall from four to six feet high along the lower side, and a dugway bank rising above it at the upper side. A spring of water came out of the hill at the upper side, a few rods above the point where the accident occurred, flowed down the hill, and was conducted across the road near the foot of the incline, diagonally, by means of a water bar, and discharged over the lower bank and retaining wall. This bar had been constructed about eight years before, and it is not claimed that it was in any respect defective, or unsuitable for the purpose for which it was made. On the lower line of the road, and over the retaining wall, guards or fences, consisting of longs 16 inches in diameter, were placed, leaving space enough for the discharge of the water that was conducted across the road by the bar to be discharged without accumulating on the bank; but for a space of about 25 feet, at the point of the accident, the road had become filled up with earth, either by the working of the road, or the action of water from the hill above, or from the water bar, so that the surface was raised up to the top of the guard, or nearly so. This change in the surface had neutralized the utility of the logs for that space, at least to a great extent, as guards. The road at this point was from 12 to 15 feet wide, and there was a slope from the upper to the lower side of about 18 inches, the lower wagon track being about 4 feet from the log guards or fenders. The accident occurred at the foot of the hill, where the road was comparatively level. For 25 feet above the bar the fall is but 1 foot 5 inches, or 1 foot for every 18; and for 68 below the bar the fall is only 3 feet, or about 1 in 22. Twenty feet above the bar the rise is more rapid, being about 1 foot in 7 1/2, for about 10 roads. It was not claimed that the commissioners, or any of them, had any actual notice of the defects in the road, if there were any; but the proof tended to show that the road was in this condition for about eight years before the accident, and the verdict was based upon the doctring of constructive notice. Ice had formed upon the water bar and upon the surface, at the point where it was discharged over the bank, caused by the freezing of the water from the spring. A short time before the...