#### N. Charles Kent, Plaintiff, *v.*Town of Patterson, Defendant.

(Supreme Court, Putnam Trial Term,

May, 1913.)

Highways — action to recover for personal injuries — conduct of commissioner of highways in removing stones therefrom — negligence.

Where the plaintiff, in an action against a town located in a rough, hilly, rocky and stony country, to recover for personal injuries, relies on the alleged negligence of defendant’s highway commissioner in placing two stones, that had been taken out of the beaten path and placed on the side of the highway, that frightened plaintiff’s horse causing it to run away and throw the plaintiff out of his wagon, it is competent to show that the conduct of the highway commissioner in working the road and in removing the stones from the beaten path and in temporarily placing them on the side of the road in question was the same method of performing the work carried on by other commissioners working similar roads in that locality.

Action for negligence.

Thomas T. Hill (George C. Andrews, of counsel), for plaintiff.

Clayton Kyder (John E. Mack, of counsel), for defendant.

Morschauser, J.

This action is for negligence against the town, and if the highway commissioner was not negligent in the conduct of his management of the highways then the action must fail.

The plaintiff relies on the alleged negligence of the highway commissioner in placing two stones that had been taken out of the beaten path and placed upon the side of the highway and that frightened plaintiff’s, horse. *561causing it to run away and throw the plaintiff out of the wagon, from which he sustained injuries. This is the charge made against the defendant. On the trial the plaintiff made proof as to the alleged negligence of the highway commissioner, and the defendant to meet the proof introduced proof that other commissioners of highways in the county of Putin m had taken out rocks in the beaten path in the highway and placed them alongside of the road similar to the manner in which rocks were left in this particular case. The proof was as to the highway in the vicinity of this highway. The defendant also gave proof that other persons had on various occasions driven their horses past these two stones in question and that their horses did not become frightened. The defendant objected to this evidence and the objections were overruled, and upon the exceptions defendant moved for a new trial. I was constrained to believe that I would have to grant this motion, but upon reflection and examination of the authorities I believe the proof was competent. The word “ custom ” has been defined in the Standard Dictionary of the English language as follows: *‘ ‘*The old and general usage that has obtained the force of law and established a recognized usage of a particular trade or vocation, as the custom of merchants. Synonyms, manner, practice, etc.”

“ Customary” has been defined as follows: “According or conforming to custom or usage. Established by custom, usual, habitual. Hold or held by custom as a tenant or his tenancy.”

Said Mr. Justice Vann in Shannahan v. Empire Engineering Corp., 204 N. Y. 543-550: “ When such a question of negligence is involved general usage and practice is competent to show ordinary care, just as one may show the purchase of a standard article from a reputable dealer. The common usage of the

*562business is a test of negligence but not a conclusive or controlling test. (Bennett v. Long Island R. R. Co., 163 N. Y. 1, 4; Burke v. Witherbee, 98 N. Y. 562, 566; Thompson’s Negligence, § 3770; 29 Cyc. 609.) While it is not always true that what everybody does anybody may do without the imputation of negligence, still it is competent to show the general habit of mankind in the same kind of business as tending to establish a standard by which ordinary care may be judged. We have said that ‘ ordinarily what everybody does is all that anybody need do.’ (Boyce v. Manh. Ry. Co., 118 N. Y. 314, 319.) Such evidence is received for what it is worth in view of all the circumstances of the particular case, and, under proper instruction from the court as to its inconclusive nature, the jury has a right to give it such consideration as they think it should receive in connection with all the other facts. ’ ’ I have examined the record on appeal in the Shannahan case (Supreme Court Library, White Plains, Vol. 99, Court of Appeals) and find that the learned counsel for the respondent there submitted a very comprehensive brief on the subject involved in this inquiry. Among the authorities there submitted are found the following:

In 29 Cyc. 609, it is said: “As a general rule custom and usage of well-appointed and well-managed concerns in the business under investigation is competent evidence on the question of the care and diligence required in' the proper conduct of the business. * * * To be admissible proof of custom must be limited to the vicinity of the accident, and to property similarly situated or under similar circumstances.”

In Wigmore’s Pocket Code of Evidence (¶ 355) it is said that evidence is admissible" to show: “The condition or quality of an object in respect to degrees or measures of negligence, danger, insufficiency, unreasonableness, cruelty, unskilfulnéss, and the like, or *563their opposites, as evidenced by instances of similar conduct or habits of other persons or animals.”

In Bennett v. Long Island R. R. Co., 163 N. Y. 1-4, the plaintiff was injured because of an improper switch maintained by defendant in its construction work. The court said: The motion for nonsuit having been denied, the defendant proceeded to introduce evidence tending to show that the switch actually used was such as is ordinarily used during the construction of railroads and that during the constructions switches are never locked and never targeted. * * * At the close of the trial, therefore, the uncontradicted testimony showed that the switch in use had not only performed its work perfectly during the months that it had been in operation and was a perfect switch of its kind, but further that the switch was of the standard variety found on construction work and that it was not customary either to lock or target such switches.”

In Harley v. Buffalo Car Mfg. Co., 142 N. Y. 31-35, the plaintiff was injured by the giving way of what was called a Buffalo belt fastener used by the defendant. The Court of Appeals said: ££ The witnesses differ as to which of the fasteners in use was the safest and best, some of them giving preference to one kind. * * * A number of witnesses who apparently had had the greatest experience with the Buffalo fastener gave it the preference for safety and efficiency. It was a patented article and had been manufactured, sold and used for several years before this accident.”

See also opinion of Earl, J., in Burke v. Witherbee, 98 N. Y. 562-566, concluding with the following sentence: £ £ What more could any reasonable or prudent man have to justify him in believing that this convenient appliance was also a safe and proper one? ”

In Devlin v. Smith, 89 N. Y. 470, the same reasoning *564was applied where the plaintiff was injured by the breaking down of a scaffold.

Healy v. Buffalo, R. & P. R. Co., 111 App. Div. 618. The plaintiff was injured by the explosion of a tube or water glass claimed to have been imperfectly covered and protected.

Rich v. Pelham Hod Elevating Co., 23 App. Div. 246. Question of proper construction of an elevator.

In Schmahl v. Albany Brush Co., 61 Misc. Rep. 316, plaintiff was injured while operating a circular saw in the defendant’s factory. The court says: 1 *‘*The defendant' then called another witness, who testified in substance that he had been in a.similar manufacturing business for thirty-seven years; that he had worked in seven or eight shops, all but one of them using such saws, and that he had never seen any guards used in connection with them, and that he did not think a guard for such a saw was practicable.”

In Wallace v. Central V. R. R. Co., 138 N. Y. 302, the plaintiff, a brakeman, was injured because telltales to give warning of an approach to a bridge were either absent or defective. The court said at page 307: “ This question was put to one of the plaintiff’s witnesses : ‘ What is the usual and ordinary distance to erect these telltales from the bridge, or low structure ? ’ This was objected to on the part of the defendant as incompetent,, and the objection was sustained. We think this question was proper. It was competent for the plaintiff to show in some way that this telltale was placed too near the bridge to answer the purpose of the statute, and upon that point he could properly show how this road, and possibly other roads, constructed its telltales, and at what distance from the bridges.” See also Isham v. Post, 141 N. Y. 100; Carlson v. Phoenix Bridge Co., 132 id. 273;. McGrath v. Fibre Conduit Co., 122 App. Div. 424; Civetti v. American *565H. & P. Corp., 124 id. 345; Devaney v. Degnon-McLean Const. Co., 76 id. 62; affd., 178 N. Y. 620; Maynard v. Buck, 100 Mass. 40.

Evidence of this character may be allowed in behalf of the defendant in response or answer to evidence on the part of the plaintiff tending' to show negligence. Warden v. Tesla, 93 App. Div. 520; Hornum v. McNeil, 80 id. 637; Gates v. Bowers, 41 id. 612.

If, as Mr. Justice Vann says in the Shannahan case, *supra,*when a question of negligence is involved, evidence of general usage and practice is competent to show ordinary care, and if evidence of the common usage of the business is a test of negligence, but not a' conclusive or controlling test, it seems to me that it was competent in this case to show that the conduct of the defendant’s highway commissioner in working the road and in removing the stones from the beaten path and in temporarily placing them on the side of the road in question was the same method of performing the work carried on by other highway commissioners working similar roads in that locality.

In the case of Champlin v. Village of Penn Yan, 34 Hun, 33-37, the plaintiff was permitted to prove that on another occasion prior to the accident, a flag similar in appearance was suspended over the street and in a similar manner to frighten other horses when driven along the street under the same. Objection was made to the evidence on the ground that it was incompetent.

The court said: “We think that the evidence was properly received, as showing to the jury that horses are at times frightened and shy at such objects. Some of the jury may have been ignorant of the habit of horses and of their natural tendency to be frightened at objects which they are not accustomed to see. It was certainly competent to prove how such sights are *566likely to disturb horses of ordinary gentleness when driven before carriages, and in places where they are not'accustomed to pass.”

In the case of Lane v. Town of Hancock, 142 N. Y. 510, Judge O’Brien writing the opinion of the court says on page 519: “ The elements which enter into the question of negligence are generally of such a nature as to make it a questio.n of fact. Even where the general facts are not in dispute, as here, but the inference to be drawn from them is not clear and certain, but doubtful, the case must be submitted to the jury. But in every case there is always a preliminary question for the court as to whether there is any evidence upon which a jury could properly find a verdict for the party producing it, and upon whom the burden of proof is imposed. (Filer v. N. Y. Central R. R. Co., 49 N. Y. 47; Linkhauf v. Lombard, 137 N. Y. 417; Hemmens v. Nelson, 138 N. Y. 517.) So that the practical question in this case is whether the commissioners were guilty of negligence.’’ On page 520 the court says: “To •keep all the roads in a large town under constant personal inspection is altogether impracticable. ’ ’ And on page 521: *11*The limit of duty on the part of a town with regard to the condition of its highways falls far short of making them'absolutely safe, under all circumstances, even for those who use them properly. (Hubbell v. City of Yonkers, 104 N. Y. 434; Glasier v. Town of Hebron, 131 id. 447; Moak v. Town of New Utrecht, 104 id. 552; Clapper v. Town of Waterford, 131 id. 382; Bryant v. Town of Randolph, 133 id. 70.)”

In the case of Stedman v. Town of Osceola, 147 App. Div. 220, the court says at page 222: “Nor do we think the town superintendent was negligent in piling the stones alongside the road and leaving them from the seventeenth to the twenty-fourth of June while he was making repairs to the highways throughout the *567town. In determining what constitutes a defective highway the surrounding circumstances must be weighed. In a thickly-settled community there is a greater obligation upon the town superintendent to keep the highways in repair for public travel than in an isolated part of the town where there is very little use of the highways. The omission of duty by a public official which is sought to be made responsible for damages sustained cannot be defined or fixed by any inflexible rule. It is an elastic variable term, dependent upon the particular facts and circumstances.” On page 223 the court says: “We think the measure of responsibility upon this town superintendent would be altogether too burdensome to charge him with negligence in piling these stones by the roadside and leaving them for a week.”

In the case of Barrett v. Town of Walworth, 64 Hun, 526, 529, the court says: 1 *‘*Rocks and stones within the limits of the highway, but not obstructing the traveled path, are not defects for which a town is liable. * **** Upon the highways of our country objects of various description will be found, many of them may cause horses to take fright, but to compel the authorities to remove them all would impose a too serious burden upon the public.

“ There is a class of cases holding the highway authorities liable for obstructions placed in the highway, like piles of stone, lumber or any object liable and calculated to frighten road-worthy horses. In such cases a question is presented for the decision of a jury as to the negligence of the town authorities.” On page 528 the court says: “A reasonably safe and commodious road-bed must be maintained, so that the traveler can either by day or night pass over it without being exposed to unnecessary peril by objects therein. A very different road-bed, however, is expected and required in the highways of the sparsely *568settled farming districts than is expected to be provided in cities and villages. ’ ’

The commissioner certainly had a legal right and it was his duty to remove the stones out of the bed of the road and to place them beyond the roadbed. If this be true, the accident complained of may have occurred within an hour or two after the commissioner of highways had deposited the rock in the highway that the horse passed. Therefore, the right to take the stones from the 'roadbed and to place them on the side of the road must be conceded as a necessity and a justifiable act on the part of the commissioner, and, if so, it depends upon whether' to a man of ordinary prudence it would appear that placing the stones on the side of the highway would in that locality have a tendency to frighten horses of ordinary gentleness, traveling on said highway. If other horses passed the stone without fear and this horse was afraid, it simply shows that this horse differs from other horses in respect to objects that would frighten this horse and not others. The commissioner was not bound to perform his work so that it would not frighten restive animals upon highways, for stones may temporarily be placed upon the side of the roadbed and within the limits of the highway.

A commissioner’s negligence must be judged by all the circumstances as they existed at this place. The town of Patterson and adjacent towns are in a rough, hilly, rocky and stony country. Innumerable rocks abound there and it is very rough land. Consequently it must be expected that rocks will be encountered in the highways and by-ways of the towns located in that section of Putnam county and it is to be expected that the conditions will be found different from places where the land is not so rough, hilly and rocky. The taxpayers do the best they can to make the road *569passable and convenient for use and in the use of it they do not expect to find a turnpike of every road, as to require them to have such condition would be prohibitive because of the great expense, but, nevertheless, under the law it is expected that they will make it safe for public travel and do nothing that will make it unsafe. All the commissioner did was to take two rocks out of the beaten path, place them temporarily upon the side of the highway and for this act the town is to be charged with negligence. How else could he prove he was not negligent without submitting proof to the jury as to what others, engaged in similar work,-do? Of course, it does not show he was not negligent, but establishes a standard by which ordinary care may be judged.. Such evidence is received for whatever it is worth. In view of all the circumstances in each case the jury has the right to give it such consideration as it should receive in connection with all the other facts in the case.

The plaintiff proved on the trial that other horses of ordinary gentleness were frightened by the’se stones in question. See 1 Wigm. Ev., § 461, p. 566; also cases cited in the notes on page 568; Bemis v. Temple, 162 Mass. 342; Champlin v. Penn Yan, *supra;*Quinlan v. City of Utica, 11 Hun, 217; affd., 74 N. Y. 603; Wooley v. Grand St. & N. R. Co., 83 id. 121.

Why should not the defendant be allowed to prove the opposite, when the conditions are the same, and show that other horses of ordinary gentleness were not frightened by the stones? 162 Mass. 342, *supra;*Wigm. Ev. *supra;*Wigm. Pocket Code of Evidence, *supra.*

Motion to set aside the verdict and for a new trial denied.

Motion denied.