
    BURNS v. CITY OF YONKERS.
    (Supreme Court, General Term, Second Department.
    December 10, 1894.)
    Highways—Doty to Erect Barriers—Question for Jury.
    It is a question for the jury whether it was negligence not to erect a harrier along a highway at the place where the track was only 7 feet wide, with a space 3 feet wide on the same level, then a slope of 13 feet with a fall of 2 feet, then a precipitous fall of 4 feet, and then a slope of 16 feet vertically and 31 feet horizontally.
    Appeal from circuit court, Westchester county.
    Action by Mary E. Burns, by guardian, against the city of Yonkers, for personal injuries. Plaintiff was nonsuited, and appeals.
    Reversed.
    Argued before DYKMAN and CULLEN, JJ.
    Ellis & Harrigan, for appellant.
    James M. Hunt, for respondent.
   CULLEN, J.

This is an appeal from a judgment in favor of the defendant entered upon a nonsuit at circuit. The plaintiff was driving a horse and wagon along the Sawmill River road, in the city of Yonkers. The horse balked, and backed the vehicle off the highway, down a steep bank. The plaintiff was thrown out and injured. For that injury she brings this action, claiming that the defendant was guilty of negligence in not providing guards or barriers along the highway. Though, in one sense, the balking of the horse may be said to have been the primary cause of the accident, this would not prevent a recovery by the plaintiff, if she were free from fault. Macauley v. Mayor, 67 N. Y. 602. It is not claimed on this appeal that the plaintiff was guilty of contributory negligence; at least, as a matter of law. The complaint was dismissed on the ground that no negligence was shown on the part of the defendant.

The liability of municipalities and towns for failure to erect barriers along the highway has been the subject of many recent adjudications in this state. There is no doubt that it is their duty to place some guard at dangerous and exposed places, where the happening of accidents from failure to place guards may be reasonably anticipated. But the question is whether, under the circumstances of the particular case, the place is such that reasonable care upon the part of the municipality would treat it as dangerous, and provide guards. In Monk v. Town of New Utrecht, 104 N. Y. 552, 11 N. E. 268, and Hubbell v. City of Yonkers, 104 N. Y. 444, 10 N. E. 858, where the roadways of the streets were in good condition, curbs set, and sidewalks constructed beyond, it was held that there was no duty to erect guards to prevent one driving over the slopes of the embankment which lay beyond the sidewalk. In Lane v. Town of Hancock, 142 N. Y. 510, 37 N. E. 473, the town was held not liable for the absence of guards along a country highway in a sparse settlement, the road not passing a place of danger. But that case proceeds chiefly on the principle that the liability of the town is limited to the liability of the highway commissioners,—a principle which does not apply to an action against a city or village. On the other hand, towns have been held liable for failure to provide guards in Ivory v. Town of Deer Park, 116 N. Y. 476, 22 N. E. 1080, where the road ran along the brink of a railway cut; in Maxim v. Town of Champion (Sup.) 4 N. Y. Supp. 515, affirmed 119 N. Y. 626, 23 N. E. 1144, where the road was supported by a retaining wall along the side of a gully; and in Holcomb v. Town of Champion (Sup.) 12 N. Y. Supp. 882, affirmed 128 N. Y. 599, 28 N. E. 252, where the road ran along a retaining wall 11 feet high. In the case at bar the road ran along the side of a hill. The track is but 7 feet wide, To the west of the track there is a space of 3 feet on the same level; then a slope of 13 feet, with a descent of 2 feet; then a precipitous fall of 4 feet; then a descent of 16½ feet vertically in 31 feet horizontal (a slope about that of an ordinary railway enbankment) to the tree upon which the wagon struck. To the east of the track there is a slight rise for 14 feet, and then a steep ascent. It would be a gross exaggeration to say that the descent thus described was a precipice, but the situation is certainly far different from that of the streets in-the Monk and Hubbell Cases. We think the case lies in that intermediate territory where it is the province-of the jury to determine the question of danger, and that of negligence in failing to provide security against the danger. We cannot say, as a matter of law, that there was no evidence to justify the jury in finding negligence. The judgment should be reversed, and a new-trial ordered; costs to abide event.  