
    John Coney, Appellant, v. The Town of Gilboa, Respondent.
    
      The questions as to the necessity of a harrier on a highway and as to negligence in its repair arre generally questions for the jury.
    
    The necessity of barriers upon a town highway, including the question whether the highway commissioners were negligent in omitting to supply them and. keep them in repair, is generally a question of fact for the jury.
    Kellogg and Smith, JJ., dissented upon the facts.
    Appeal by the plaintiff, John Coney, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schoharie on the 13th day of April, 1900, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Schoharie Trial Term.
    The action was brought to recover damages sustained by the plaintiff for injuries received upon one of the highways of the town of Gilboa, by reason of the alleged negligence of the commissioners of highways of said town.
    
      C. L. Andrus, for the appellant.
    
      Eugene E. Howe, for the respondent.
   Parker, P. J.:

It must be deemed settled that, as a general rule, the necessity for barriers, including the question whether commissioners were negligent in omitting to supply them and keep them in repair, is a question of fact for a jury. (Wood v. Town of Gilboa, 76 Hun, 175 ; Van Gaasbeck v. Town of Saugerties, 82 id. 417; Bryant v. Town of Randolph, 133 N. Y. 70; Ivory v. Town of Deerpark, 116 id. 476.) But, as is said in the case of Lane v. Town of Hancock (142 N. Y. 519),'“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. If there is not, the court must direct a nonsuit, or a verdict, as the case may require.”

It is in applying this preliminary question to the facts of each •particular case that confusion has arisen in the decisions upon this subject. And we could not expéct it to be otherwise. Each case has its own peculiarities, and naturally such peculiarities make different impressions upon' different minds. It would be a burdensome, and I am inclined to think a hopeless task, to try and reconcile all the cases, and I shall make no effort to do so in this opinion. It is sufficient to say that we think, upon the facts as presented in the record before us, the jury should have been allowed to pass upon the questions thereby presented.

It is urged by the respondent’s counsel ’ that this accident comes within the class referred to in Hubbell v. City of Yonkers (104 N. Y. 434) and Glasier v. Town of Hebron (131 id. 447), and that, therefore, negligence cannot be predicated against the commissioners.

We are of the opinion that there are features in this case not to he found in tliose referred to, and which a jury might properly consider in determining the question of the commissioners’ negligence. The place -where this accident occurred was but a short distance from a village, and was at the foot of a steep ascent where the road was somewhat curved, and over which a great deal of travel passed. A more detailed analysis of the evidence here would probably not be fair for either party in the event that another trial is had. I will only say that, in our judgment-,, it was a question of fact for the jury whether, under all the circumstances of this case, reasonable care for the safety of travelers required the maintenance of a barrier at the place in question; whether the commissioners were or were not negligent in not maintaining one, and whether the plaintiff’s injury was or was not caused by their neglect.

The judgment of nonsuit must, therefore, be reversed, and a new trial granted, costs to abide the event.

All concurred, except Smith and Kellogg, JJ., dissenting.

Kellogg, J. (dissenting):

I think the judgment of nonsuit was right. The test of the safety of a highway cannot be its capacity to guide and carry safely a loaded, uncontrolled wagon running by gravity backward down a steep hill. This accident is of such unusual character that it cannot be imputed as negligence'on the part of the highway commissioners not to have anticipated it. Mor is there any evidence from which the jury had a right to find that had there been at the place of the accident any obstacle, bunker or barrier, the accident would not have happened. It is only against the accidents which are likely to happen that the commissioners are called upon to make provision.'

Smith, J., concurred.

Judgment reversed on the law and the facts and new trial granted, with costs to appellant to abide event.  