Opinion
Argued March 17, 1892
Decided April 12, 1892
William H. Henderson for appellant.
Frank W. Stevens for respondent.
The act of 1881 (Chap. 700) imposes upon the several towns of the state liability for any damages occasioned to persons or property by reason of defective highways in cases where theretofore the commissioner of highways of the town would have been liable. The general highway statute places upon the highway commissioner the "care and superintendence of the highways and bridges" in his town. (1 Rev. St. 501, § 1.) It is the established rule in this state that where an individual sustains an injury by misfeasance or nonfeasance of a public officer, who acts contrary to, or omits to act in accordance with, his duty, an action lies against such officer in behalf of the party injured. (BRONSON, J., Adsit v. Brady, 4 Hill, 630.) In accordance with this principle, prior to the act of 1881, commissioners of highways were held liable to a person injured from a defective highway within his jurisdiction, which he had negligently omitted to repair, provided he had adequate funds furnished by the town, with which he could have made the necessary reparation. ( Robinson v. Chamberlain, 34 N.Y. 389; Hover v. Barkhoff, 44 id. 113; People ex rel. v. Town Auditors, 74 id. 310.) The opposite view taken in the opinion of the court in Bartlett v. Crozier (17 Johns. 440), and in West v. Village of Brockport ( 16 N.Y. 161), and in some of the New England states, has not been followed.
Under the statute of 1881 the liability of a town is commensurate with that of a commissioner of highways before the act was passed, and while the duty of reparation rests upon the commissioner of highways since the passage of the act, as before, the civil liability for injury to persons or property from his neglect to perform the duty, is imposed upon the town, and it becomes liable to respond in damages wherever before the statute the commissioner would have been liable. In this case the jury have found that the approaches to the railroad crossing were unsafe and dangerous, and their finding is justified by the evidence. The embankment confined travel to the narrow roadway on the surface, and the evidence tends to show that the lines of approach to the railroad track along the embankment were such that travelers incurred great hazard, especially with loaded wagons, of driving too near the edge of the embankment and being precipitated over the side into the depression below. The embankments were constructed by the railroad company in 1860, within the lines of the existing highways. The sides were left unguarded by any fence or barrier, and this condition continued until after the accident in question. We do not understand it to be controverted that if these approaches remained a part of the highways of the town of Randolph, over which the commissioner of highways had, and was bound to exercise, the same jurisdiction as over other parts of the highways in the town, a case of negligence on the part of the commissioner was established, which, in the absence of contributory negligence on the part of the deceased, gave a right of action against the town under the act of 1880. Negligence on the part of a commissioner of highways may consist as well in the omission to erect barriers in dangerous places in a highway as in leaving a bed of the highway defective. ( Ivory v. Town of Deerpark, 116 N.Y. 476; Dillon on Mun. Corp. § 1005 and cases cited.)
But it is contended on behalf of the town that no responsibility rested upon the commissioner of highways as to the condition of the embankments, for the reason that they were part of the railroad crossing and made necessary to adapt the highways to the grade of the railroad, and were constructed by the railroad in performance of the statutory duty imposed upon a railroad company which constructs its line across a highway, to restore the same "to its former state or to such state as not unnecessarily to impair its usefulness." (Laws of 1850, chap. 140, § 28, subd. 5.) This duty is, as is properly contended, a continuing duty, and it is insisted that the effect of the statute is to withdraw from the jurisdiction of the commissioner of highways such portions of the highways of the town as form a part of a railroad crossing, and to place the duty of repair exclusively upon the railroad corporation. This claim is, we think, unsound. The Railroad Statute confers a privilege upon railroad companies and imposes a duty. It permits them to locate their lines across highways, but it couples the privilege with the duty of restoration. For the failure to perform the duty there is a public remedy by indictment, or by mandamus, or other action, at the instance of the highway commissioners of the town, under chapter 255 of the Laws of 1855, and a private remedy also in behalf of a person injured. ( People ex rel. Green v. D. C.R.R. Co., 58 N.Y. 153; People v. N.Y.C. H.R.R.R. Co., 74 id. 302; Masterson v. N.Y.C. H.R.R.R. Co., 84 id. 247; McMahon v. S.A.R.R. Co., 75 id. 231.)
But we perceive no ground for maintaining that the duty imposed by the statute of 1850 upon railroad corporations relieves commissioners of highways from the care and control of those parts of public highways constituting approaches to railroad crossings, although constructed by the railroad company as part of its statutory duty. The object of the statute of 1850 was two-fold, to legalize the crossing of highways by railroads, and to impose upon the railroad company crossing a highway the burden and expense of restoration. But the original highway, when its route is not changed, remains a public highway as before. The railroad company has the right, in the first instance, to determine the place of crossing and the manner of restoration. But as was said in People ex rel. Green ( supra), the discretion reposed in the railroad company is ministerial and not judicial. The commissioner of highways is not deprived of his jurisdiction, and under the statute of 1855, may institute proceedings to compel the company to fully perform its duty, or he may, as it seems, where the company is in default, proceed and do the necessary work and maintain an action against the company for the expense. There is no express statute depriving a commissioner of highways of jurisdiction over parts of highways which a railroad company may adapt for approaches to crossings, and it would seem to be opposed to public policy to exempt them from his general jurisdiction and responsibility and to turn over travelers injured by defective reparations to a remedy against a private corporation. We think the ruling at the trial upon this point was correct.
The defendant also set up the defense of contributory negligence. We deem it unnecessary to restate the evidence bearing upon this point. It is sufficient to say that the question upon the facts proved was for the jury.
One ground upon which contributory negligence was claimed was the position of the intestate upon the load of bark. It was claimed that he should have sat near the front wheel, in full sight of the horses, and have operated the brake by a rope from that position. The court allowed, under objection, a question to be put to two of plaintiff's witnesses, whether the place where the intestate sat was a proper place for a driver to be, and they answered in the affirmative. We think these questions were improper, and that the matter was not provable by the opinion of witnesses. But all the facts bearing upon the question were before the jury, composed presumably of men competent from judgment and experience to determine the matter upon the facts for themselves, and we think it is quite plain from the circumstances appearing in the record, that the improper evidence allowed did not prejudice the defendant, and for that reason the error is not sufficient ground for reversing the judgment. There are some other exceptions, but the main reliance was upon the two points we have noticed, and we think none of the others require particular consideration.
The case was carefully tried, the charge was clear and impartial, and we think the judgment should be affirmed.
All concur.
Judgment affirmed.