Summary
In Halstead v. Village of Warsaw (43 App. Div. 39) a steam roller was allowed upon the street after work was suspended for the day.
Summary of this case from Buchanan's Sons v. Cranford Co.Opinion
July Term, 1899.
E.M. Bartlett and N.W. Evans, for the appellant.
Michael L. Coleman, for the respondent.
The nonsuit was error. The street was intended for the public, and, while the municipal authorities necessarily were entitled to its use to improve and repair it, they must exercise that use in a way to insure the safety of travelers so far as compatible with the temporary interference of those intrusted with its care. When work upon the street is suspended for the day, if there is any obstruction to its unrestricted use, then that obstruction should be guarded so it is not a menace to the traveler. If there is an excavation in the street, it must be protected by lights or barricades to apprise the wayfarer of danger. The jury might well say this machine would tend to frighten horses, and, if so, it was incumbent upon those having it in charge to see it was removed from the street when the work was completed for the day. It was left in a narrow street, taking up one-third of its width. It was a place where horses going to and from the railroad station to the evening train must necessarily pass.
In Eggleston v. Columbia Turnpike Road Co. ( 82 N.Y. 278) a pile of stones had been placed by the side of the road for use in repairing a bridge. Plaintiff's horse was frightened by these stones while crossing the bridge, and jumped from the bridge injuring plaintiff and his wagon, and the Court of Appeals held that these facts justified a recovery against defendant.
In Tinker v. The New York, O. W.R.R. Co. (71 Hun, 431) the defendant put two sticks of timber, each about ten feet in length and twenty inches square, by the side of the road, about ten feet from the traveled portion. The horse driven by plaintiff's husband became alarmed at these logs, veered suddenly out of the road, throwing plaintiff from the carriage and inflicting injuries upon her. A nonsuit was granted at the Circuit, which was reversed by the General Term. The court, in discussing the proposition, said: "An object in a public street which is of such a form or character that it is calculated to frighten horses of ordinary gentleness, is an obstruction in the nature of a nuisance, and anyone who so places or maintains it is ordinarily liable for the consequences likely to arise. * * *
"Whether or not the timbers in question, by reason of their form and character, their situation near the traveled part of the highway and partially concealed in the ditch, were calculated to frighten horses of ordinary gentleness was, we think, a question for the jury. It was a matter for inference in regard to which there was room for fair difference of opinion among intelligent men."
In Whitney v. Town of Ticonderoga ( 127 N.Y. 40) the horse of plaintiff was frightened by a road scraper in the highway and a recovery was sustained.
In the same line are Ring v. Cohoes ( 77 N.Y. 83); Mullen v. Village of Glens Falls ( 11 App. Div. 275); Wood Nuisances (§ 295).
It, therefore, seems quite well settled that if objects which have a tendency to frighten horses of ordinary tractability are permitted to remain in the street, the municipality will be chargeable with negligence.
While there is no direct proof that this machine would scare horses, yet the description of the machine, its dimensions, appearance and location in the street, coupled with the fact that this horse shied as it passed by the roller that morning, in the presence of those using it, made the defendant's negligence a question for the jury to determine.
It is urged that the injuries to the plaintiff were not the result of the fright of the horse, but was due to the broken bit and to her jumping from the vehicle. When the injuries are the result of two proximate causes, the primary one of which is attributable to the negligence of a municipality, and the secondary of which cannot be laid at the door of either party, the municipality is liable. ( Phillips v. The New York Central H.R.R.R. Co., 127 N.Y. 657; Ring v. Cohoes, supra; Ivory v. Town of Deerpark, 116 N.Y. 476, 486.)
The plaintiff was in a perilous situation, and, if she did not exercise the best of judgment in the emergency, it cannot be said, as matter of law, no recovery can be had. ( Bucher v. New York Central H.R.R.R. Co., 98 N.Y. 128; McClain v. Brooklyn City R. Co., 116 id. 459; Dyer v. Erie Railway Co., 71 id. 228, 235.)
The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.
All concurred.
Judgment reversed and a new trial ordered, with costs to appellant to abide the event.