Mckone v. Vill. of Warsaw

• Decision Date: 19 February 1907
• Citation: 80 N.E. 212,187 N.Y. 336
• Parties: McKONE v. VILLAGE OF WARSAW.
• Court: New York Court of Appeals Court of Appeals

187 N.Y. 336

80 N.E. 212

McKONE

v.VILLAGE OF WARSAW.

Court of Appeals of New York.

Feb. 19, 1907.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Henry McKone against the village of Warsaw. From a judgment of the Appellate Division (84 N. Y. Supp. 1134,89 App. Div. 616), affirming a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.

Cullen, C. J., dissenting.

E. E. Charles, for appellant.

M. L. Coleman, for respondent.

GRAY, J.

The plaintiff has sued the village of Warsaw for the damage occasioned to him by an injury to his horse, as the result of stepping upon a loose stone in the street. The allegations in the complaint are, in brief, that the defendant had ‘wrongfully, carelessly, and negligently omitted to remove rolling stones from the beaten track of Buffalo Road in the village’ and that while, on June 28, 1899, he was driving his team of horses upon the road, one of them ‘stepped upon the rolling stones, thereby causing his said horse to injure one of its legs and fall, * * * from which said horse received serious and permanent injuries.’ He recovered a verdict for the value of the horse, and the judgment upon the verdict, by a divided vote, was affirmed by the justices of the Appellate Division. That part of the Buffalo Road, where the accident happened, is just within the corporate limits of the village. The road starts at Main street, in the settled part of the village, and runs west to Wyoming street, which bisects it in a northerly and southerly direction. So much of the road is frequently used, and the roadbed is well card for. The other part of the Buffalo Road, where the accident occurred, leaves Wyoming street at a point some 15 to 20 rods south of the above intersection, and, ascending a steep hill, runs in a westerly direction through a territory, so sparsely settled that, for three or four miles, there are only three or four residences. The soil is loose, and is filled with gravel and stones; rains would wash the roadbed; deep ruts would form; and the surface was broken up by what is termed the ‘rough-locking’ of wheels of vehicles when descending the hill. Where the plaintiff's horse was injured, on either side of the roadbed, were small ditches, or gulleys; that on the north side being intended to carry off the wash of surface water, and that on the south side being a mere washout of about six inches in depth and a foot in width. The plaintiff describes the road as being covered with stones all the way up to the point where the accident happened. He was driving a pair of horses, in the daytime, and, as he endeavored to pass the ditch on the north side of the road, the left-hand horse stepped with one of his fore feet upon a large round stone and fell; his feet sliding into the little gulley on the south side of the road. The horse sprang up immediately, but was found to be permanently lamed.

It is to be assumed from the plaintiff's case that the roadbed in question was in a bad condition. If all that was necessary, in order to charge the village with a liability, was to prove the presence of loose, or rolling, stones in the roadway and the injuries to the plaintiff's horse from stumbling and falling, the plaintiff made a case for the jury and the question is presented whether there is so extensive a liability resting upon these municipalities. I do not think so. If they can be made responsible in damages for the injurious consequences of a horse stumbling upon the loose stones in a country road, I think it would be crossing the border line between what is reasonable and what is unjust, if not absurd, in such cases. This was a dirt road leading over a steep hill, and so rarely...