Walker v. Town of Pittsfield — 198 N.Y. 559

Majority

p. 559

Cora A. Walker, Respondent, v. The Town of Pittsfield, Appellant.

Headnote

Walker v. 2 own of Pittsfield, 138 App. T)iv. 938, affirmed.

(Argued March 23, 1910;

decided April 5, 1910.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 23, 1908, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover for personal injuries alleged to have been sustained through the negligence of defendant.

II. 0. Stratton and Harry J. Mosher for appellant.

Wordsworth B. Matterson for respondent.

The judgment should be affirmed, with costs. There was evidence with respect to the condition of this highway for several months prior to the accident, from which the jurors might find neglect on the part of the commissioner of highways in failing to keep the sluiceway at this point in good order and that such neglect caused a more serious defect in the highway in the winter following, than would have occurred otherwise. If the defect complained of could be attributable, solely, to those conditions which usually supervene in the winter season, as the result of atmospheric changes

p. 560

and of the effect of travel upon accumulations of snow and ice, we should be disinclined to hold that the commissioner of highways was chargeable with culpable neglect.

Cullen, Ch. J., Gray, Edward T. Bartlett, IIaight, Werner and Hiscock, JJ., concur; Yann, J., not voting.

Judgment affirmed.