People v. Waterford & Stillwater Turnpike Co.

This evidence had not the slightest materiality, and it is impossible to see any reason for offering or admitting it. It was not referred to in the charge, and formed no ground for any of the numerous requests subsequently made by the defendants' counsel in respect to the matter upon which instructions were to be given to the jury. Three questions were finally submitted to the jury upon which they found specially. The evidence so objected to had no relation to either of the questions, and could have had no influence upon the answers found by the jury. When the evidence is wholly immaterial, and can have no possible effect upon the court or jury, its admission, although erroneous, cannot be magnified so as to entitle a party to a new trial, or a reversal of the judgment. 37 Barb. 300; 1 N. Y. 519; 20 Id. 246; 33 Barb. 218, 227.

2. The defendants' counsel objected to the admission of evidence showing the condition of the road from the time that the defendants began to take toll from passengers down to the commencement of the action, and, his objections being overruled, he excepted.

The evidence was clearly within the issue. The complaint states the duty of the defendants to construct and keep in good repair the said road, twenty-two feet wide, bedded with stone, gravel, sound wood, or other hard substance, well compacted, and of sufficient depth to secure a solid foundation, and to face it with gravel or broken stone, not less than nine inches in depth, in such a manner as to sucure a firm and even surface, rising in the middle by a gradual arch, with ditches on each side; and that the defendants were bound to erect and maintain good and sufficient bridges over all the streams which were passed by the road, and to keep the bridges and the road in good condition, and the surface of the road smooth and even, as pounded er broken stones, slate, gravel or other hard material would admit. It is then averred that the defendants never constructed the road or bridges as required as aforesaid; that they have not for the last ten years kept and maintained the road in the condition required by law, but have willfully neglected to make, mend and repair the road, and have allowed it to remain out of repair, unsafe and dangerous to pass with loaded teams, and have willfully neglected to keep the surface

People v. Waterford & Stillwater Tuanpike Co.

covered with pounded or broken stones, gravel, slate or other hard material; and have willfully neglected and allowed the bridges over the streams which the road passes to remain broken down and decayed, unsafe for the passage of persons, teams, &c., and that they still collect toll, &c.

It is entirely clear that this issue called for the very evidence which was admitted under the inquiry objected to.

The averment of greater width than the act required was immaterial. The evidence was still admissible, although a forfeiture could not be adjudged for the want of sufficient width, if found to be as wide as the statute called for.

It was also urged that the complaint was not specific, and that the certificates of the inspectors of turnpike-roads, of the completion of the road in conformity with the law, was conclusive upon the plaintiffs as to the construction. The evidence covered only the facts specified in the averment of breaches in the complaint. The complaint is specific as to the duty of the defendants, and also in respect to their willful neglect, in certain specified particulars, to comply with the law which prescribed the defendants' duty.

The certificates had not been introduced when the plaintiffs' evidence was given in respect to the construction; but if it had been, the evidence was still admissible. The certificates were presumptive evidence only for the defendants of the proper construction of the road to entitle them to begin to receive tolls. Nor was any averment required in the complaint in respect to the falsity of the certificates. If they were false it could not be anticipated by the plaintiffs, that the defendants, who knew better than anybody else how the fact was, would offer them as evidence. It would have been a mere pleading of evidence to have referred to the certificates in the complaint, and to have there alleged their falsity. The certificates had nothing to do with the issue to be framed by the pleadings.

3. The interrogatories finally submitted to the jury do not embrace anything respecting the sufficiency of the bridges, nor as to their width. The inquiries relate to the road only. The jury could not, therefore, have found against the defendants, on

People v. Waterford & Stillwater Turnpike Co.

account of a defect in the breadth or repair of the bridges, as supposed by the defendants' counsel in his sixth point.

4. The judge was requested to charge that the defendants were not required to use extraordinary and enormous expenses in constructing the road. The judge declined so to do, but read the provision of the statute directing how the road should be constructed, and charged that the defendants were bound to comply with the statute. The defendants excepted to the re

fusal, and also to the direction given.

The request was too broad. No evidence had been offered to show what would be ordinary or common expense, or that the road could not be constructed within such limits; nor that any extraordinary or enormous expenses would be incurred in conforming to the requisition of the statute which was read to the jury.

There was no error in directing the jury that the statute must be complied with.

Every argument for supposing that the jury could be unfavorably influenced by these remarks of the judge, was removed by the next paragraph of the charge, as shown by the case. They were there instructed that the defendants were not required to maintain the road with a hard and even surface, regardless of rains and bad weather in the spring; and the jury were then directed that the defendants must comply with the statute in building the road, and that they must decide from the evidence whether the road had been kept in repair according to the spirit and intent of the statute.

5. There is no request or exception on the subject of the neglect of the defendants being willful or malicious. The evidence renders it apparent that the defendants knew the condition of their road. It cannot be supposed that the road could have been so out of repair as to be nearly impassable by teams, in the spring and fall, in many places, for several years, without the defendants being chargeable with such knowledge as must constitute willful and malicious negligence. Negligence with knowledge is intentional, and includes the willful and malicious omissions of duty mentioned in the statute. L. 1854, p. 167, c. S7. 6. It is said that the court submitted to the jury the construction of the statute in relation to the manner of bedding the road.

People v. Waterford & Stillwater Turnpike Co.

The duty of interpreting the law of course devolved upon the court, but I do not think the objection is well founded in fact.

The judge said, as it appears from a paragraph of the case, that "if the jury came to the conclusion that the statute requires that the bedding of the road must be made otherwise than by merely drawing gravel on the top, then they will find that the road was not properly bedded."

In that connection he proceeds to instruct the jury further in respect to the bedding, that the fair construction of the statute meant such other hard or durable material as stone or gravel, and could not be supposed to be satisfied with a softer or poorer material. 2 R. S. 3 ed. pp. 481, 499. The defendants excepted to each paragraph separately; but the latter direction modifies and explains the former, and left the jury no opportunity for exercising their own discretion as to the interpretation of the statute.

If, however, the judge left the construction of the statute to the jury, it was the more favorable for the defendants, inasmuch as the proper interpretation required the judge to inform the jury that the statute required a bedding of some hard or durable material, and could not be satisfied by putting a facing over the natural soil or a bedding of clay, as was done in many places. The defendants might have had a more favorable construction from the jury than the court could give them. But I think no such subject was left to them.

7. The defendants, however, insist that the statute permits the use of the ordinary soil for bedding the road. 2 R. S. 5 ed. p. 499, 98.

It is provided by the statute that the road " shall be bedded with stone, gravel or such other material as may by found on the line thereof." It is in evidence that there was stone and gravel in great abundance within a short distance of the worst and most impassable parts of the road. There was no occasion to inquire what "other material," which might be found on the line of the road, was referred to by the statute. There was an abundance of stone and gravel along the line of this road, but the natural soil, without any bedding, was proven to be its condition in several places. If there had been no stone or

People v. Waterford & Stillwater Turnpike Co.

gravel, and wood had been plenty, perhaps logs or timber might have satisfied the statute. I think it clear that clay, or the ordinary soil, where that is not gravel or some other hard material, does not answer the requirements of the law. There is no necessity for any such provision if clay or ordinary soil of a soft and tenacious quality can be used. There may be other good material besides gravel or stone to be found along the line of a road, and the statute permits such to be used. The words "along the line" extend to a reasonable distance each side of the line; and, if stone or gravel, or other material for making a hard bed, cannot be found nearer, the distance of one or two miles would still be along the line of the road, and must be sought for the bedding. Nor can the "arch" of the road, formed by the bedding and facing, be dispensed with by the substitution of ditches on each side. "Good and sufficient

ditches on each side, wherever the same is practicable," are to be made in addition to the bedding. The "arch" designates the shape of the bedding and facing. 2 R. S. 5 ed. 480, § 20; 499, § 97. There was no error in the charge.

The defendants also object because the court directed the jury to render a general verdict for the plaintiffs, after having found specially in answer to certain interrogatories propounded under the direction of the court.

A general verdict appears not to be necessary or quired by the Code of Procedure (§§ 260, 261). The court may in all cases instruct the jury, if they render a general verdict, to find upon particular questions of fact in writing (§ 261). Where the special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly (§ 262).

The court can now treat the case as if no general verdict had been rendered. The general verdict, being immaterial, may be disregarded. The judgment was to be rendered by the court, as the law applicable to the facts, as found, required. Such would be the result, under the foregoing provisions of the Code, which way soever the general verdict had been rendered by the jury. United States Trust Co. v. Harris, 2 Bosw. 75. The facts found established a forfeiture from which the defendants can be relieved only by the legislature. Without regard to the