
    (67 Hun, 623.)
    LANE v. TOWN OF HANCOCK.
    (Supreme Court, General Term, Third Department.
    February 15, 1893.)
    1. Highways—Defects—Negligence of Road Officers.
    In an action against a town to recover damages for the death of plaintiff’s intestate by the overturning on a public road of a sleigh in which deceased was riding, there was evidence that the road, which at that place was about 11 feet wide, sloped to one side, where there was a perpendicular descent of several feet, and that it had been in that condition, without a barrier, for several years. A water bar ran diagonally across the road, and, at the time of the accident, water had flowed over the road and frozen, so that the sleigh, without the driver’s negligence, slipped off the road. Held, that the negligence of defendant’s road commissioners was properly submitted to the jury.
    3. Same—Absence of Previous Accidents.
    In such action, the fact that no accident had occurred there before was not conclusive that the road, where the accident occurred, was safe. Hubbell v. City of Yonkers, 10 N. E. Rep, 858, 104 N. Y. 434; Glasier v. Town of Hebron, 30 N. E. Rep. 339, 131 N. Y. 447,—distinguished.
    3. Same—Notice of Defects—Previous Condition.
    Where the road had been in the same state for seven years before the accident, defendant’s road commissioners must be deemed to have had notice of its condition.
    4. Same—Plan of Construction.
    Where the evidence showed that when the road was built “fenders” were put where the accident happened, but that the road had since been filled in higher than the fenders, and that there was no water bar when the road was made, the jury were justified in finding that the accident was caused by the road.getting out of repair, and not because of a defect in the plan of construction."
    6. Same—Want of Funds to Repair.
    In such action, the want of sufficient funds to repair the road was a defense to be asserted and proved by defendant.
    Appeal from circuit court, Sullivan county.
    Action by Marvin Lane, as administrator of Sarah A. Lane, deceased, against the town of Hancock, to recover damages for the death of plaintiff’s intestate by the overturning on a public road of a sleigh in which deceased was riding. There was a judgment for plaintiff entered on a verdict. From the judgment, and from an order denying a motion for a new trial, defendant appeals^
    Affirmed.
    For appeal from an order denying defendant’s motion for a change of venue, see 9 Ñ. Y. Supp. '97.
    Argued before MAYHAM, P. J., and PÜTÑAM and HERRICK, JJ.
    Wesley Goúld, (T. R. Gilbert, of counsel,) for appellant.
    John F. Anderson, (T. F. Bush, of counsel,) for respondent.
   PUTNAM, J.

The questions whether the death of plaintiff’s intestate was or was not caused by the negligence of the commissioners of highways of the town of Hancock, and whether there was any contributory negligence on the part of said deceased, I think, were properly and fairly submitted to the jury by the trial court. The matters litigated in the action have been passed upon in so many reported cases, and the principles involved are so well settled, that a brief discussion of the case will be sufficient. There was evidence on the trial showing, or tending to show, that at the point on the highway where the accident happened the road was about 11 feet wide, and sloping considerably from the upper to the lower side, where there was a perpendicular descent of several feet, over which the sleigh in which deceased was riding fell. There was a water bar running diagonally across the road, and the water flowed over this place and was frozen, so as to make the road slippery. The sleigh, when it came to the point in question, without any negligence on the part of the driver, slipped off the road, was overturned, and deceased was killed. The highway had been in this condition for several years, and had no barrier on the sides. The testimony given on the trial as to the condition of this road at the place where the accident occurred rendered the submission of the question as to the negligence of defendant’s highway commissioners to the jury necessary, within the cases of Ivory v. Town of Deerpark, 116 N. Y. 476, 22 N. E. Rep. 1080; Maxim v. Town of Champion, 50 Hun, 88, 4 N. Y. Supp. 515; Bryant v. Town of Randolph, 133 N. Y. 70, 30 N. E. Rep. 657; and many other cases which it is unnecessary to mention. In fact the evidence of negligence in this case on the part of the officers of defendant was stronger and more conclusive than was shown on the part of the defendant’s commissioners in either of the three cases above cited. In this case there was a road sloping rapidly to a steep embankment, with a water bar running diagonally across it, over which road water was suffered to flow and freeze, and on which a loaded sleigh would be likely to slip and be thrown over the embankment, however properly driven, as was the sleigh on which deceased was riding. The fact that no accident had ever occurred at the place in question before, if such fact was shown on the trial, although some evidence tending to show that this point in the road where the accident occurred was not dangerous, is not conclusive in that regard, especially in a case like this, where the testimony given by plaintiff so strongly indicates an unsafe condition of the highway. Maxim v. Town of Champion, 50 Hun, 93, 4 N. Y. Supp. 515. Counsel for defendant compares this case to Hubbell v. City of Yonkers, 104 N. Y. 434, 10 N. E. Rep. 858, and Glasier v. Town of Hebron, 131 N. Y. 447, 30 N. E. Rep. 239. A careful examination óf the testimony and consideration of the facts have led me to the conclusion that this case is not similar to those authorities.. In the Hubbell Case the road was 30 feet wide, macadamized, and in good condition. The accident was caused by the plaintiff’s horse being frightened, and not by the condition of the highway. Here the road was only 11 feet wide, sloping, without barriers, covered with ice, and in such a dangerous condition that a sleigh passing along the highway would naturally and' almost necessarily slip and go over the embankment; and the accident by which deceased lost her life was in fact caused by the sleigh slipping over the embankment on account of the defective condition of the highway. In Glasier v. Town or Hebron, supra, the road was 17 feet wide, and in good condition. Here, as we have seen, there was evidence to justify the jury in finding that the highway where the accident occurred was in bad condition, and in such a state that said accident might naturally have been anticipated. The highway having been in the same state for seven years prior to the death of Mrs. Lane, the officers of defendant must be deemed to have had notice of its condition.

Tt is suggested by counsel for appellant that the highway being in the same condition as when accepted by the commissioners, and having been made in accordance with the plan adopted by them, the defect, if any, was incident to the plan adopted, and was an error of judgment of the commissioners, on which no judgment can be obtained. Urquhart v. City of Ogdensburg, 91 N. Y. 67. The testimony in the case, however, does not sustain defendant’s position. It appears that when the road was built there were “fenders” put at the place where the accident happened. That the road had since- become filled in with earth higher than the fenders. Also there was no water-bar when-the road was made. Had there been a fender at the place where the accident occurred, the sleigh on which deceased was riding would not have gone over the embankment. Hence there was evidence in the case justifying the jury in finding that deceased lost her life, not on account of any defect in the plan of the road as adopted by the officers of the town, but on account of its being allowed to become out of repair. The defendant insists that it was for the plaintiff to allege, and show as a part of his cause of action, that the commissioners had sufficient funds, or the power to procure sufficient funds, to repair the highway in question, and neglected to take the proper and necessary steps to obtain such funds. I think the want of funds was a defense to be asserted and proved by defendant. Bullock v. Town of Durham, (Sup.) 19 N. Y. Supp. 635; Hover v. Barkhoof, 44 N. Y. 118; Adsit v. Brady, 4 Hill, 634; Clapper v. Town of Waterford, 131 N. Y. 388, 389, 30 N. E. Rep. 240. Also the evidence in the case was such that the jury could properly find that defendant’s officers either had the funds, or could easily have procured the small amount ($20) necessary to properly repair the defective part of the highway in question. Without attempting to discuss the question, I will refer to the remarks of Bradley, J., in Ivory v. Town of Deerpark, 116 N. Y. 484, 22 N. E. Rep. 1080, as entirely applicable to this case. Also the opinion in Warren v. Clement, 24 Hun, 474. The highway had been in the same bad condition for several years. It required only $20 to repair it. The highway commissioners, who mustbedeemedto have had notice of the condition of the road, had a right to, under the statute, raise the sum of $1,000 for highway purposes each year. The jury could properly have determined that they negligently failed to take proper steps to provide funds, if they did not in fact have means on hand to make the repair that would only cost $20, at a place on the highway that had needed ■such repair for seven years. . The trial judge submitted the question to the jury as to the possession of funds by the defendant’s officers in a fair charge, to which no exception was taken, and I am unable to see that any error was committed by him in his instructions to the jury or rulings in the matter.

Several exceptions were taken by appellant to decisions of the trial judge in receiving or excluding evidence offered, which are urged as grounds for,granting a new trial. I have, examined and considered each of said decisions carefully, but do not think they require discussion, or that the trial judge, in either of the rulings so excepted to, made any error that should cause a reversal of the judgment.

The judgment should be affirmed, with costs. All concur.  