Snowden v. Town of Somerset ( 1904 )

Stover, J.:

It was held in Snowden v. Town of Somerset (171 N. Y. 99), an action in favor of the wife of this plaintiff, based upon- the same accident as the one here shown, that the negligence of the defendant was a question of fact for the jury.

The contention of the defendant now is that the sole cause of the injury to plaintiff’s wife was the tipping of the seat on which she tried to support herself in alighting from the wagon at the time of the accident and while the horses attached.to the wagon were down in the sluiceway.

Mrs. Snowden testified that there was a crash and the horses went down. Plaintiff, her husband, jumped- out and the children got out one side of the wagon before Mrs. Snowden attempted to alight. Mrs. Snowden took hold of the seat in front of her, placed her foot upon the step of the wagon and as she attempted to alight the seat tipped and she was thrown into the ditch. As she says, “ I took hold of the seat, it tipped and I don’t remember what then. I remember taking hold of the middle seat, the seat in front of me. I remember of getting my foot on the step on the east side of the wagon. The next thing I remember was Willie came to me in the ditch. I didn’t know then ivhere I was but that was where I was.”

She also testified that she could not see the middle seat when she started to get out and did not know anything about its position, or whether it was out of place or not and that she could not see anything. At the time of Mrs. Snowden’s attempt to alight plaintiff was engaged with the horses, still attached to the wagon and, according to the evidence -of plaintiff and Mrs. Snowden, struggling.

The question of whether the injury complained of was caused by defendant’s negligence or the act of Mrs. Snowden in taking hold of the seat, was submitted to the jury under a correct instruction, and we think we should not disturb the finding. Mrs. Snowden was called upon to act in order to protect herself from what she might fairly expect to be serious injury resulting from-the struggle of the horses attached to a wagon in a dangerous situation. It cannot be said that in the brief interval in which the children were alighting, in which she retained a seat in the wagon without injury, the situation had changed and that she was in a position of safety. During this time (but a few moments at most) she was engaged in directing one son to go for a light and in seeing that the other children were taken from the wagon.' Her attempt to alight was but a continuance of action begun at the first appearance of. danger, viz., gaining a place of safety and escaping a danger from the excited horses. The situation called for prompt action; they were still in the dark, a rain storm in progress and an unknown situation as to their physical surroundings^ Even if the act under other circumstances might have been careless, it would seem that under those in this case it was but natural and not imprudent.. The danger was so imminent that she should not be held to that accuracy of judgment required when acting with knowledge of the situation and full opportunity to exercise deliberate judgment; '

As this is the only substantial error complained of on this appeal, if the above views are correct, the judgment should be affirmed.

All concurred.

Judgment and order affirmed., with costs.