McCord v. Town of Ossining

10 N.Y. St. Rep. 407

• Court: New York Supreme Court
• Decided: July 1, 1887
• Status: Published

Opinions

Barnard, P. J.

There was no proof of negligence upon the part of the town officers which can be said to have been the proximate cause of the accident. One Fox built a fence upon the line of the highway according to a survey. The survey brought the line further into the road than the old fence indicated, but is upon the line of the road as originally laid out.” Some stones of the ordinary size and appearance were placed on the side of the road and outside of the traveled part to be used in the wall. The plaintiff in driving along the road was not inconvenienced by the stones; had no difficulty in passing, but her horse shied and threw the wagon against the fence. The theory of the plaintiff is that the horse was frightened by the stones on the side of the road. This is not a thing which the best of attention can guard against. The finding in respect to them is "that they were ordinary stones, such as are used to build stone walls, and had nothing peculiar or strange about them.”

The referee is, therefore, right in his finding that no negligence was proven.

Judgment affirmed, with costs.

Pratt, J., concurs.