Robinson v. Town of Somers (189 A.D. 792, 1919)

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.

Rich, J. (dissenting).

The jury have found that the defendant failed to use ordinary care, and I agree with them. There are times when it is impossible to keep highways clear of snow and ice or even to make them passable by the use of ordinary care, but this was not one of them. It is conceded that town authorities in rural districts are not required to remove accumulations of snow from the highways, but there are times when, as in the case at bar, the exercise of reasonable care might require that some attempt be made to remove a single obstruction. This snowbank drifted into the highway December 13, 1915, and was permitted to remain until January 26, 1916, the night of the accident; there was no snow upon either side of the obstruction, plaintiff had come over this State highway from Connecticut and had seen none until the automobile plunged into this drift.

The jury knew that had the town authorities turned this snowdrift over with a plow and given sun and wind an opportunity to work upon it, the accident might have been avoided. I must vote for affirmance of the judgment and order, with costs.

Judgment and order reversed and new trial granted, with costs to abide the event.