
    Lydia A. Glasier, App’lt v. Town of Hebron, Resp’t.
    
      (Supreme Court, General Term,, Third Department,
    
    
      Filed December 4, 1894.)
    
    Highways—Barrier.
    The mere absence of a barrier from an embankment, where the highway is seventeen feet wide, level and smooth, does not establish negligence on the part of the highway commissioners.
    Appeal from a judgment of nonsuit.
    
      J. M. Whitman (Potter & Lillie, of counsel), for app’lt; Hdgar .Hull {L. H. Northup, J. &. HAmoreaux, and C. H Sturges, of •counsel), for resp’t,
   Putnam, J.

The defendant has sought to be made responsible in this action for damages sustained by plaintiff in consequence •of alleged negligence of its highway commissioners in omitting to place barriers on the side of a highway in said town, in consequence of which plaintiff received the injuries cpmplained of. We think the trial judge did not err in granting the motion for a nonsuit. .Even if he was mistaken in holding that the case, as far as the evidence of the plaintiff was concerned, was substantially ■as it was on the former trial, and hence that it could not be submitted to the jury under doctrines laid down in this case by the ■court of appeals (131 N. Y. 447; 43 St. Rep. 319), yet under the law as established in the subsequent case of Lane v. Town of Hancock, 142 N. Y. 510; 60 St. Rep. 112, the trial court was compelled to dismiss the complaint.

The negligence charged against the defendant’s highway commissioners was in not erecting barriers on the side of the highway .at the place where the accident occurred, and where there was a perpendicular descent to the water of the pond below. In Lane v. Town of Hancock, supra, the evidence tending to show negligence on the part of the highway commissioners of the town of Hancock was stronger than in this case. In that case the road was built along the side of a steep hill, with a retaining wall on the lower side, and was but 12 to 15 feet wide, sloping from the upper to the lower side 18 inches. Water flowing over the road made it slippery. There had been guards at the lower side of the road over the retaining wall, but the road had become filled up to the top of such guards, so that, when the plaintiff’s intestate was killed, there was in fact no barriers there. The deceased was riding on a load of lumber placed on a pair of bobsleighs. 3STo negligence was imputed to the driver. When he came to the place where the accident occurred, without any fault or negligence on his part, the rear bob slipped over the retaining wall, there being no barrier at that place for a space of 25 feet, and a perpendicular descent of several feet. The sleigh was overturned, and plaintiff’s intestate was killed. The court o£ appeals held, under all the circumstances, that the proof was not sufficient to establish negligence on the part of the highway commissioners of the town of Hancock, and that the trial court should have nonsuited the plaintiff. In this case, the highway, at the place where the plaintiff was injured, was 17 feet wide, level and smooth, and there was no fact indicating negligence except the mere'absence of a barrier. We think, under the law as settled in Lane v. Town of Hancock, supra, there was no question as to the negligence of defendant’s highway commissioners that could have been properly submitted to the jury.

The judgment should be affirmed, with costs.

All concur.  