
    Peter Lilley, as Administrator of the Estate of Raymond Lillet, Deceased, Appellant, v. The Town of Tompkins, Respondent.
    
      Lilley v. Town of Tompkins, 171 App. Div. 959, affirmed.
    (Argued March 29, 1918;
    decided April 23, 1918.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered December 3, 1915, affirming a judgment in favor-of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of the defendant. The plaintiff alleged that a wagón in which the intestate was riding was backed from the beaten part of the highway in the defendant town and for the condition of which the defendant was responsible, to the edge of the highway, thence. over and down a steep embankment, where the wagon overturned and threw the decedent and the other persons with him to the ground, thereby causing his death; that a watering trough was located at the side of the road where the accident happened, at which the horse had stopped to drink; that in starting he had backed a little causing the hind wheels to drop down the embankment on the opposite side; that the accident and death could reasonably have been averted had the defendant placed a log or any reasonable guard or fender on the side of the road at a point where teams and horses drinking at the water tub would naturally back a little in order to return to the beaten and traveled part of the highway.
    
      H. C. Stratton and Arthur E. Conner for appellant.
    
      C. R. O’Conner and Alexander Neish for respondent.
   Judgment affirmed, with costs; no -opinion.

Concur: His cock, Ch. J., Collin, Cupdeback, Cardozo, Pound,. Crane and Andrews, JJ.  