The power of municipal corporations to make improvements may or may not be exerted, and for a failure to proceed or an erroneous estimate of the requirements of the public, no civil action can be maintained. The reason being that the duty imposed is judicial in its character, requiring the exercise of deliberation and judgment.
But when action has been taken and judgment has been exercised and an improvement has been made, then a duty is imposed on the municipality to continue the same in order and repair. This is a ministerial duty and for its violation or neglect a civil action may be sustained for damages resulting therefrom. (Hines v. City of Lockport, 50 N. Y., 236; Sewell v. Cohoes, 15 N. Y., 45; Gillespie v. Newburgh, 54 N. Y., 468 ; Kennedy v. Mayor, 73 N. Y., 365.)
The municipal corporations of this state have power under their charters to command the means of keeping the streets within their limits in a safe condition for use, and hence it is their duty to do so, and for a failure in its performance from which injury results a civil action may be maintained. (Ehrgott v. Mayor, 96 N. Y., 264.) While it is true that negligence cannot be assigned against a municipal corporation for the design or plan of an improvement, the public may at the same time require care in its construction and management.
In this case the question relates to the construction of the street, and its subsequent condition. The complaint is that an embankment on its side was left entirely unprotected, and the absence of such guards rendered the accident possible, or rather that the accident resulted from such absence. The plaintiff was riding along Linden street in the city of Yonkers, in a wagon with a friend, who was driving, when the horse became frightened by an approaching bicycle. He started suddenly aside and became unmanageable; the driver lost control of him and the horse and wagon went over an embankment and the plaintiff was carried with them and received the in juries complained of. Linden street is one of the public streets of the city of Yonkers, and has been made about ten years. Its construction was in accordance with plans adopted by the common council of the city which specified no railing or guard along the edge of the embankment.
Now, the claim on behalf of the city is that the street was con*351structed according to a plan adopted by the common council, and therefore no liability can attach to the city, even though the plan was defective, and the injury resulted therefrom, and to maintain this position the doctrine is invoked which has already been noticed. That doctrine is salutary and just when properly applied, as it was in Urquhart v. Ogdensburgh (91 N. Y., 67). There the defect complained of was the slopes in the sidewalk from the building to-the street, which was about seven and three-eighth inches in a width of six and one-third feet. Ice had formed on this sidewalk suddenly, from water carelessly spilled just previous to the accident which caused the injury. There was no allegation or suggestion of negligence in the prosecution of the work, or that the sidewalk -was laid unskillfully, or that it was defective at the time of the accident; so that the entire complaint was against the exercise of the judicial discretion of the city authorities in establishing' the grade of the sidewalk, and the decision was that no civil action could be maintained in such a. case. The case of Mills v. Brooklyn (32 N. Y., 489), was decided on the same principle. But these cases do not decide that a municipal corporation may escape liability for a defective construction of an improvement, merely because it is made in accordance with an approved plan. If a bridge over a ravine or a water stream was built by a city or village, and left without a side guard, or a street was constructed on a causeway high above the natural level of the ground, and left without side rails or protection, responsibility for injuries resulting from their absence could not be avoided by showing that they were made in accordance with the plans. Such a doctrine, carried to its legitimate conclusion and result, might release all municipal corporations from the duty imposed on them to maintain the streets within their limits in a safe condition for travel in the usual modes. Here we have the case of a public street built ten feet in the air, and left for ten years unprotected, and the city desires to escape liability because the original plan of the improvement called for no side protection. The effort cannot succeed. If the public had this right to require guards for the sides of this 'street, and the failure to erect them was negligence, the city is liable for injuries resulting from their absence. But it is further claimed that the injury in this case resulted from the fright of the horse, and not from the. *352defect in the street.' In the examination of this question, it must be assumed that it was the duty of the city to place guards along the sides of the streetthat the failure" to do so was negligence, and that there was no negligence in the management of the horse. The duty imposed on municipal corporations to keep the streets in a condition of safety has reference to all the ordinary requirements of the public streets, and highways are made for travel in all the ordinary modes. The animals usually employed on the roads are horses, and the road-beds are constructed with reference to their use, but ordinary care requires also that the streets and highways shall be constructed and maintained with reference to all the ordinary exigencies arising thereon. Horses do not reason, and are liable to sudden frights, and in their fear and terror they often start suddenly aside from the path of ordinary travel. But a horse is not beyond control when he merely shies or suddenly starts, and when an accident results from a negligent defect in a highway, the fact that the horse was at the time unmanageable furnishes no defense to an action for the resulting injury.
It was the duty of the defendant to protect the public in the ordinary use of its streets, or at least to use reasonable diligence to do so, and it would be quite too illiberal to hold that the fright of the horse in this case was the cause of the accident. It is a case where it may be said two causes combined to produce the injury, both of which were in their nature proximate. One was the culparble defect in the street, and the other the fright of the horse, for which neither the plaintiff or defendant were responsible. The defendant is, therefore, liable, because the injury would not have ' been sustained but for such defect. (Ring v. Cohoes, 77 N. Y., 88; Gillespie v. Newburgh, supra; Kennedy v. Mayor, supra.)
In the consideration of this case the power and duty of the defendant to keep its streets in order for travel has been assumed. No question has been made of this, and there can be none under its charter.
The judgment should therefore be affirmed, with costs.
Barnard, P. J., concurrred.