Robinson v. Town of Somers

189 A.D. 792, 179 N.Y.S. 107, 1919 N.Y. App. Div. LEXIS 4760

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 1919
• Status: Published

Opinions

Putnam, J.:

This accident occurred some time after the snowstorm causing these drifts. The usual manner in breaking out after heavy snowfalls, as is testified, was not to keep to the middle line of the traveled way, but, where snow accumulations encroached over the margins and into the normal roadway, the cleared way sometimes diverged toward the side, leaving a path safe and convenient but not precisely in fine with the laid macadam surface. We are not referred to any authority holding it to be negligent for the line of winter travel to be temporarily deflected from that of summer travel, or that such windings or divergences may be an actionable “ defect ” under section 74 of the Highway Law (as amd. by Laws of 1913, chap. 389). (See Seeley v. Town of Litchfield, 49 Conn. 134; Willey v. City of Ellsworth, 64 Maine, 57.)

Rural vehicles have no difficulty in traversing such country roads. Had it not been for thick fog and a speed of twelve to fifteen miles an hour, this motor car would doubtless have turned aside and passed in safety. The duty of town superintendents or commissioners of highways and pathmasters is to use ordinary care; that is, such as a reasonable and prudent person would exercise in similar circumstances. (Lane v. Town of Hancock, 142 N. Y. 510; Hubbell v. City of Yonkers, 104 id. 434; Dorn v. Town of Oyster Bay, 84 Hun, 510.)

Tested by these standards, actionable neglect was not shown. The verdict must be held to be against the weight of the evidence; and the finding of defendant’s negligence, implied in the verdict, should be reversed.

Therefore, this judgment and order should be reversed and a new trial granted, with costs to abide the event.

Jenks, P. J., Kelly and Jaycox, JJ., concurred; Rich, J., read for affirmance.