MARY R. STEDMAN, Respondent,
THE TOWN OF OSCEOLA, Appellant.
APPEAL by the defendant, The Town of Osceola, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Lewis on the 9th day of March, 1911, upon the verdict of a jury for $1,500, and also from an order entered in said clerk's office on the same day denying the defendant's motion for a new trial made upon the minutes.
James F. Hubbell and Frederick G. Fincke, for the appellant.
D. Francis Searle, for the respondent.
The action is to recover damages for personal injuries claimed to be sustained by the plaintiff by reason of the defective condition
of a highway in the defendant. The town of Osceola contains no village or city, has 600 inhabitants, forty-four miles of highways, and two-thirds of the entire area of the town consists of uncultivated, unproductive land. The highway in question was in a sparsely-settled part of the town and infrequently traveled.
On the 15th of June, 1909, by direction of the town superintendent, this road its entire length was run over by the town road scraper and the dirt, sods and stones from the sides of the traveled part of the highway were scraped into the center, so that the crown or apex was about eighteen inches higher than the land at the ditch on either side, and the traveled part was uneven. A day or two later the road was dragged over with a springtooth harrow, breaking up the sods, and the stones were raked out and piled along the side of the traveled part of the road. These piles were from ten to twenty feet apart, varied in size, containing perhaps a peck or half-bushel of stones in each pile, and the heaps were from one to one and one-half feet in length and from six inches to a foot in height. The town superintendent intended to have these stones removed and the road further leveled, but the men were engaged in other parts of the town repairing the roads with the scraper. As he expressed it, 'The workmen were at work, but had not got that far yet.' Men were engaged in removing the stones piled up at the side of the highways at the time of the accident, and on the following day reached the place where the plaintiff was injured. The traveled part of the highway inside the ditches was from ten and one-half to twelve feet, and it had not been narrowed any by the work done upon it.
The plaintiff owned a small farm on this road, occupied by herself and her husband. The road extended westerly from her premises for about a mile, but there was no other dwelling. About ten o'clock in the forenoon of June twenty-fourth the plaintiff was leading an old, gentle horse to pasture along the northerly side of this highway. A few rods east of the house she met two men in a road wagon, one of the rear wheels of which hit the horse, causing him to jump, throwing the plaintiff to the ground. One of her feet was caught in one of the stone piles and she was dragged over it, inflicting
the injuries for which she has recovered against the town.
The plaintiff finally testified that she did not see the wagon wheel strike the horse, but narrated circumstances which may support the inference that such was the fact, although the occupants of the wagon, who were the supervisor and town superintendent, testified that they did not know of any such contact, nor were they aware that the plaintiff was thrown to the ground at all or that the horse jumped.
The court permitted the jury to base its verdict upon either the 'narrowness' of the highway or 'the existence of these stone piles there.' In his opinion on the motion for a new trial he said: 'However, it seems to me that were the only criticism of the road in question its width, I would be compelled to hold that in view of the little travel upon the highway and the sparsely settled condition of the adjacent country the road was a reasonably proper one and for the public a reasonably safe and suitable road for travel.' (71 Misc. 186.)
It may be the jury based its verdict upon the charge that the road was of insufficient width, and upon ...