Napoleon L. Pelkey, as Administrator, etc., of Gilbert Pelkey, Deceased, Respondent, v. The Town of Saranac, Appellant

Napoleon L. Pelkey, as Administrator, etc., of Gilbert Pelkey, Deceased, Respondent, v. The Town of Saranac, Appellant. Negligence —neglect to put barriers upon the sides of a bridge—the fact that many other bridges in the town did not have them — assumption therefrom—^ want of money as a defense—security for costs by a foreign administrator—discretionary power. In an action brought against a town to recover damages resulting from the death of the plaintiff’s intestate, who, while attempting to drive a team of horses attached to a wagon across a highway bridge in the defendant town on a dark night, drove off the side of the bridge, which was not protected by a guard rail or barrier, into the creek below and received injuries from which he died, the question whether the highway commissioner of the town was negligent in omitting to place a guard rail or barrier along the sides of the bridge, which was about twenty-seven feet long and thirteen feet wide and was ten feet above the bottom of the stream, is a question of fact for the jury. Evidence that there were from fifty to seventy similar bridges in the town and several miles of dugway, all of which required protecting barriers as much as did this particular bridge, does not relieve the highway commissioner from the charge of negligence, where it appears that for a long time he had had actual notice that this bridge was not provided with a guard rail and that he had been informed that for this reason it was unsafe for travelers to drive over on a dark night. The fact that neither the bridge in question nor any of the other similar bridges of the town had been provided with guardrails or protecting barriers did not, as matter of law, justify the commissioner in assuming that the bridge in question was safe and in this respect in a proper condition. The objection that the commissioner did not have money enough to erect barriers along the sides of tlie bridge is unavailable where it does not- appear that he had obtained from the town, and expended, all of the moneys for which he was authorized to ask. An application made by a defendant to compel the plaintiff, an administrator appointed in another State, to give security for costs, is controlled by section 3271 of the Code of Civil Procedure and is addressed to the discretion of the court. The Appellate Division w}ll not interfere with the discretion, exercised by the Special Term in refusing to require the foreign administrator to give such security, where the latter’s claim is apparently a bona fide one and does not appear to have beenmade merely for the purpose of harassing the defendant. Appeal by the defendant, The Town of Saranac, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 8th day of April,. 1901, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 11th day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes. Also an appeal by the defendant, The Town of Saranac, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Clinton on ■ the 29th day of March, 1901, denying the defendant’s. motion to compel the plaintiff to furnish security for costs. The action is brought by the administrator of Gilbert Pelkey, deceased, who, in an effort to drive a team of horses - attached to a wagon across a bridge in a highway in the defending town, in a dark night, drove off from the side into the creek below and received injuries from which he died. This action is brought by his administrator to recover against the town damages for causing his death, on the theory that the commissioner of highways of the town had negligently omitted-to place a rail or barrier-along the side of said bridge to protect against driving off therefrom. The action was tried before the court and a jury, and a verdict was rendered for the plaintiff for the sum of $500. From the judgment entered thereon, and from an order denying a motion for a new trial, this appeal is taken. Thomas F. Conway, Frank E. Smith and Thomas B. Cotter, for the appellant. Lucian L. Shedden, for the respondent. [MAJORITY — Parker, P. J.:] Parker, P. J.: The question presented by this record is whether the highway commissioner of the town of Saranac can be charged with negligence for omitting to place some guardrail or protecting barrier along the sides of the bridge in question. The jury have said that lie was. Can we say, as matter of law, that he was not % It is not disputed but that the bridge was about twenty-seven feet long and thirteen feet wide, and ivas ten feet above the bottom of the stream below. If a man drove ofi there he was more than likely to be seriously, if not fatally, injured. And that, in a dark night, there was danger that any one might so far wander from the center of the bridge as to drive over the side of it, is quite apparent. In other words, it can hardly be said that such an accident would be one that was unlikely to happen. Therefore, that line of cases which have excused the commissioner from protecting against the accident on the ground that it was one not to be expected are not applicable to this case. It is urged before us that there were from fifty to seventy bridges like this in the town and several miles of dugway, all of which require a barrier to protect them as much as this bridge did, and that for such reason within the case of Lane v. Town of Hancock (142 N. Y. 511) the commissioner could not be charged with negligence in not protecting this one. In that case the Court of Appeals decided that, upon the undisputed'facts and considering all the circumstances appearing in the case, the commissioners could not justly be charged with negligence in not discovering and repairing the defect which existed in the barrier that had once existed and protected the lower side of the highway. The gist of the decision upon this point was that to require the commissioners, under the circumstances of that case, to discover and repair the defect, although it had existed for a long time, was asking a greater diligence on the part of a commissioner than should or could practically be required from him. In the case before us the commissioner for a long time had had actual notice that this bridge had no guardrail upon it, and it had been called to his attention that for such reason it was an unsafe bridge over which travelers were compelled to drive in a dark night, The Lane case, therefore, so far as regards the commissioner’s negligence, is not controlling upon this case. Although the commissioner had many bridges of a like character in his town to inspect and ascertain their condition as to being properly protected by barriers, and several miles of dngway presenting a like question, yet such duties cannot be said to have excused him in this case from acting in regard to this, bridge, inasmuch as its condition was expressly called to his attention, and he was requested to act in reference thereto. Evidently the commissioner in this case omitted to protect this bridge through sheer carelessness or else because he thought that its condition was good enough as it was. It is urged upon ns that this bridge had never had since its erection many years ago any protection along its sides, and that none of the many bridges in the town similar to this had ever had any, and that, hence, the commissioner was. justified in assuming that they were safe and in this respect, in a proper condition. But it can hardly be said that such conclusion should be reached as a matter of law. The question arising in each particular case must be controlled by the circumstances attending it. It is true, as was said in the Lane case, that “ in every case there is always a preliminary •question for the court as to whether there is any evidence upon which a jury could properly find a verdict for the party producing it and upon whom the burden of proof is imposed; ” but I cannot discover that the situation in this case, warrants the court in taking that question from the jury. Whether the commissioner’s omission to protect this bridge with some sort of a barrier, calculated to prevent one from driving-off from it in the dark, was, under the circumstances of this case, such an omission as a careful and prudent officer would have made, was evidently one for the jury to determine. The charge of the court instructed them explicitly that unless the commissioner had been negligent in that respect they should not render a verdict against the town. The accident was one reasonably to be apprehended from the condition of the bridge, and the conclusion of the jury that the commissioner was negligent in not furnishing protection against it is warranted by the evidence. The defendant’s counsel suggests that he had not money enough to erect these barriers. But it does not appear that the commissioner had obtained from the town and used up all of the moneys which the law authorized him to ask for, and lienee he has shown no-defense for want of funds. From the circumstances, the jury were also warranted in concluding that the deceased was not guilty of any negligence that contributed to his injury. Evidently he was making an effort by following the light to get across in safety. Whether he did all that an ordinarily prudent man would have done was for the jury to determine. The judgment should be affirmed, with costs. Smith, Edwards, Chase and Houghton, JJ., concurred. Judgment unanimously affirmed, with costs.