The plaintiffs also aver that the Court committed an error when it instructed the jury that if the jury found there were no prior accidents with this manure spreader, their verdict must be for the defendants. It is clear from a review of New York case law that the plaintiffs are correct in their contention that long continued use of a machine without accident does not negate the finding of negligence as a matter of law. See, generally, Wood v. Gilboa, 76 Hun 175, 27 N.Y.S. 586 (1894), aff'd, Wood v. Gilboa, 146 N.Y. 383, 42 N.E. 544 (1895). However, in presenting this case for appeal the plaintiffs have failed to present a transcript of the actual charge.
It must be deemed settled that as a general rule the necessity for barriers, including the question whether commissioners or superintendents were negligent in omitting to supply them and keep them in repair, is a question of fact for a jury. ( Wood v. Town of Gilboa, 76 Hun, 175; affd., 146 N.Y. 383.) In Nicholson v. Town of Stillwater ( 208 N.Y. 203) the plaintiff's intestate was driving an automobile after dark along a much-traveled highway.
In that case there would be two proximate causes of the accident, and the responsibility would rest with the defendant if one of such causes was attributable to the fault of the commissioners. ( Ring v. City of Cohoes, 77 N.Y. 83.)" Wood v. Town of Gilboa (76 Hun, 175; affd., 146 N.Y. 383) is a similar case, and the same doctrine is applied. I think the question of proximate cause was one of fact and was properly decided by the jury.
There had been a barrier at this place some years before, but it had rotted down. There was a curve in the road at this place, and there is evidence that if the horse went straight ahead he would go off the bank. Whether or not the commissioner of highways was negligent in failing to erect at this place a proper barrier was a question of fact. ( Wood v. Town of Gilboa, 76 Hun, 175; affd., 146 N.Y. 383; Maxim v. Town of Champion, 50 Hun, 88; affd., 119 N.Y. 626; Bryant v. Town of Randolph, 133 id. 70.) The evidence was, we think, sufficient to require the submission of the question to the jury. It was also for the jury to say whether the accident was attributable to the lack of a barrier.
The Lane case was brought under the provisions of chapter 700 of the Laws of 1881, to which the provisions of the Highway Law, hereinbefore referred to, have succeeded, with no apparent intention of making the liability of a town any more burdensome or substantially different from what it was under the act of 1881. The plaintiff insists that the case of Wood v. Town of Gilboa (76 Hun, 175; affd. without opinion in 146 N.Y. 383) is authority to sustain the judgment here. The facts in that case do not fully appear in the report.