Reid v. Town of Ripley — 37 N.Y. St. Rep. 590

Majority

p. 590

Hugh C. Reid, Resp’t, v. The Town of Ripley, Appl’t.

(Supreme Court, General Term, Fifth Department,

Filed April 16, 1891.)

Headnote

Highways—Negligence.

While plaintiff was driving along a narrow road in the defendant town, which adjoined a ravine, the horse stumbled on some small rolling stones, and the carriage with its occupants was precipitated over the bank and injured. In an action for such injuries, plaintiff’s evidence tended to show that the road was not guarded at that point; that he exercised caution and care in driving, and that the horse was manageable. Defendant’s, evidence showed that plaintiff was acquainted with the road, and that the-horse was difficult to manage. Held, that the questions of negligence and contributory negligence were properly submitted to the jury.

Appeal by the defendant from the judgment entered upon a verdict, and an order denying a new trial.

H. C. Kingsbury, for app’lt; A. B. Ottaway, for resp’t.

In July, 1885, the plaintiff was driving a horse harnessed to a buggy, in which there were two other persons. He was going to the village of Ripley, in Chautauqua county, and took the road that led through what is known as Gage’s Gulf. It was a highway along the bank of a ravine. On the right side there was a sloping, high bank; on the left, a precipitous descent. The plaintiff in driving came to a steep declivity where the road was very narrow. Between the bank and the road-bed there was a ditch from four inches to four feet deep.

At this point the road had been made by cutting down the bank and building up with logs. It was narrow, about nine feet in width. The road-bed had upon it small rolling stones on the surface. These conditions had existed since the building of the road. There was no barricade to prevent a traveler from going over the precipice. As the plaintiff was driving over those stones on the day in question, the horse stumbled, and he, with the occupants of the carriage, were precipitated over the bank, together with the. horse and carriage. The horse’s leg was broken. His estimated value was $150. The carriage was broken, and the plaintiff, including the occupants, injured.

An action was brought to recover damages before a justice of the peace of the town of Mina, Chautauqua county, which resulted in a judgment of $150 for the plaintiff. An appeal for a new trial was taken by the defendant to the county court of Chautauqua county. It was had, resulting in a verdict for a like amount. A motion for a new trial was made and denied, and the defendant appealed to this court.

The evidence on the part of the plaintiff tended to show that the road at the point of the accident was not guarded on its sides, or in any way protected; also, that the plaintiff in driving exercised caution and care, and that the horse was manageable. The testimony on the part of the defendant tended to show that the plaintiff was well acquainted with the road, and that the horse was difficult to manage.

The evidence as a whole required its submission to the jury, both on the question of the defendant’s negligence and the contributory negligence of the plaintiff. No exceptions were taken, and the sole question presented here is one of fact. The whole subject has been recently considered in this court. Fay v. Town of Lind ley, 33 N. Y. State Rep., 539 ; 11 N. Y. Supp., 355 .

It was also considered in Ivory v. Town of Deerpark, 116 N. Y., 476 ; 27 N. Y. State Rep., 643, and Holcomb v. Town of Champion, 12 N. Y. Supp., 882 ; 36 N. Y. .State Rep., 759.

The order and judgment must be affirmed, with costs.

Dwight, P. J., and Macombeb, J., concur: