Whitney v. Town of Ticonderoga

• Court: New York Court of Appeals Court of Appeals
• Citation: Whitney v. Town of Ticonderoga, 127 N.Y. 40, 27 N.E. 403 (N.Y. 1891)
• Decision Date: 21 April 1891
• Parties: NELSON E. WHITNEY, Respondent, v. THE TOWN OF TICONDEROGA, Appellant.

127 N.Y. 40

27 N.E. 403

WHITNEY

v.TOWN OF TICONDEROGA.

Court of Appeals of New York, Second Division.

April 21, 1891.

Appeal from judgment entered upon order of the general term of the third judicial department, affirming judgment entered on verdict in favor of the plaintiff. The action was brought to recover damages for personal injuries suffered by the plaintiff, and alleged to have been occasioned by the negligence of the commissioner of high ways of the defendant; and it appeared that on the evening of May 4, 1888, the plaintiff, in a Frazer cart, drawn by a horse driven by him, in Main street in the village of Ticonderoga, was thrown out and injured. He was going southerly, and, after crossing a bridge over the outlet of Lake George, he pulled a little to the right, he hourse sprang to the left, the wheel struck something on the right, and the left wheel locked into and went over the wheel of another vehicle going north. He was thrown out to the right. Upon the street near the right sidewalk at that place was a road-scraper used for working highways. It was an apparatus having four wheels, was up wards of four feet in width, and, exclusive of the pole, something more than seven feet in length. The end of the pole or tongue was 90 feet from the bridge, and the north end of the body of the scraper was 11 feet further south. The width of the road-way of the bridge was 18 1/2 feet, divided into two by a partition timber in the center; and the width of the street for 90 feet south of the bridge continued about the same, and there it commenced to widen, and continued to do so until it reached the width of 66 feet. And the evidence tended to prove that at the place where the body of the scraper was the distance between the sidewalks was about 30 feet, but the divergence of the outer line was on the east side only. The plaintiff had a verdict.

PARKER, J., dissenting.

Richard L. Hand, for appellant.

Chester B. McLaughlin, for respondent.

BRADLEY, J., ( after stating the facts as above.)

The evidence warranted the conclusion that without fault of the plaintiff his injury was occasioned by the roadscraper scraper in the street. At the time of the occurrence it was dark, and the plaintiff had no knowledge that the machine was there. In its absence the street was suitable for driving up near to the sidewalk. The only ground for liability of the defendant is that furnished by the statute, which provides that ‘the several towns in this state shall be liable to any person suffering the same for all damages to person or property by reason of defective highways or bridges in such towns, in cases which the commissioner or commissioners of highways of said towns are now by law liable therefor, instead of such commissioner or commissioners of highways.’ Laws 1881, c. 700, § 1. It is urged on the part of the defendant that the street in question was not defective within the meaning of the statute, because there was no defect in the bed of the road. It is true that there was no defect in the structure of the road-way, but the highway, as such, was in a defective condition. The term ‘defective highways' was used in reference to their condition for public travel upon them, which their designation as highways imports, and in view of the purpose for which they are established and maintained; and the impairment of a highway for public use may be no less such by an obstruction placed in it than by a physical disturbance or injury to the bed of the road-way. In either case the highway is in a defective condition, and evidently such condition is within the meaning of the term ‘defective highways,’ as used in the statute. There was nothing contrary to these views in the doctrine of Hewison v. City of New Haven, 34 Conn. 136. To charge the defendant with...