#### Nelson E. Whitney, Resp’t, *v.*The Town of Ticonderoga, App’lt.

*(Supreme Court, General Term, Third Department,*

*Filed July 6, 1889.)*

1. Highways—What is “defective highway”—Laws 1881, chap. 700.

In an action to recover for injuries sustained by reason of a defective highway, *Held,*that a highway whereon a heavy scraper over four feet wide by about seven feet long, had been left standing for the night in the roadway, unguarded and unliglited, was a “defective highway” within the meaning of the act (Laws 1881, chap. 700) imposing a liability upon towns for damages caused thereby.

2. Pleading—Effect of when head in evidence.

Where a pleading is read in evidence, it is read as the declaration of the party, and takes its place as any other testimony to be considered by the jury in connection with other testimony, and they may, upon all the evidence, reach the conclusion that the confession contained in the pleading is true, and the avoidance false.

Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury upon the trial at the Essex county circuit.

The action was to recover for injuries sustained by the plaintiff “by reason of a defective highway.” The evidence tended to show that on May 4, 1888, after dark, the plaintiff, while riding in - a “ Frazer road cart,” and driving the horse attached to it along Main street in the village of Ticonderoga, came in collision in the dark with a road scraper belonging to the defendant, which had been left in the roadway near the sidewalk, and was thrown from his cart and seriously injured.

*Bichard L. Hand,*for app’lt; *C. B. McLaughlin,*for resp’t.

Landon, J.

The appeal is from the judgment. No appeal is taken from1 the order denying the motion made upon the minutes to set aside the verdict. We must, in such case, assume that if the rulings of the court were correct, the evidence justified the verdict. The judgment, therefore, must be affirmed unless the exceptions taken upon the trial disclose some ruling of the court to the prejudice of the defendant.

At the close of the plaintiff’s case the defendant moved for a non-suit upon the ground that “there is no evidence of the existence of a defective highway in the town of Ticonderoga.” The evidence was to the effect that this highway was not defective otherwise than on account of *951this scraper. The scraper had. been left standing for the night upon the roadway near the west sidewalk, unguarded and unlighted. The night was dark. The plaintiff did not see it. It was in the form of a four-wheeled wagon truck, with a scraper device beneath the wagon frame, quite heavy, four feet two inches wide, seven feet two inches long, exclusive of the pole. It is obvious that it was a formidable and dangerous obstacle for a horse and light vehicle to collide against in the dark.

The statute (Chap. 700, Laws 1881), imposes a liability upon towns for certain damages caused, “by reason of defective highways or bridges in such town, in cases in which the commissioner or commissioners of highways of said towns are now by law liable therefor.”

Refinement in discrimination may distinguish between a defect in the highway itself and an obstacle upon it; but why a liability should be imposed in one case and not in the other is not apparent. The legislature obviously meant by a defective highway, one actually unsafe for public travel. A wooden awning over a sidewalk *(Hume*v. *Mayor,*74 N. Y., 273); an advertising banner suspended over the street *(Champlin*v. *Village of Penn Yan,*34 Hun, 33; 102 N. Y., 680); a pile of ashes in the street *(Ring*v. *City of Cohoes,*77 N. Y., 83); a pile of stones upon the side of the roadway.(18 Hun, 146; 82 N. Y., 281), have been held to be defects in the streets or highways. The exception on this ground cannot be sustained.

Another ground- urged for the non-suit was, that there is no evidence of negligence upon the part of the commissioner of highways. The defendant’s answer was read in evidence. It denies everything in the complaint, not admitted, and alleges the ownership of the scraper to be in the town or road districts thereof in which Main street is situate;_ that neither the town nor road district had owned or provided any place for storing it; that the commissioner had no funds applicable to procuring a place, and there was no place to put it except within the lines of the highway, and that the scraper was placed at the time in question close upon the west line of the highway outside the portion of the same traveled by teams, leaving ample room for teams to pass each other without danger from it, and that “defendant’s said commissioner of highways used due and proper diligence and care in the placing ana leaving of said scraper to prevent accident.”

The defendant’s counsel urges that this answer must be taken as an entirety, and that the confession cannot be separated from the avoidance. This is true when regarded as a pleading. In such case every part of the pleading is adopted, nothing extrinsic to be considered, and, therefore, nothing is presented to impair the full force of the result which the pleader sets forth. If the avoidance is ample as pleaded, there can be no confession in the plead*952ing which can be separated from the ample avoidance. • But when the pleading is read in evidence, it. is read as the declaration of the party, and takes its place as any other testimony, to be considered by the jury in connection with the other testimony. The jury must determine the issues of fact upon a fair consideration of all the testimony. Their convictions or inferences cannot be coerced by the court, and they may, upon all the evidence, reach the conclusion that the confession of the party is true and the avoidance false. *Mott*v. *Consumers’ Ice Co.,*73 N. Y., 543. Within the rule there was evidence of the negligence of the defendant’s commissioner — evidence that he placed the scraper where it was left. The declaration of the defendant, that the commissioner used due diligence and care in so doing, was only a part of the whole testimony upon that issue; the circumstances were the other part; the jury could consider it all, and adopt the inference Reducible from the circumstances, instead of that declared by the defendant.

Judgment affirmed, with costs.

Learned, P. J., and Ingalls, J., concur.