
    Mary T. Farrell, Respondent, v. Town of North Salem, Appellant, and Charles F. Ganung and Frank W. Hoyt, Respondents.
    Second Department,
    June 10, 1910.
    Negligence — injury on'highway at intersection of State road and town highway — liability of town — absence of guard rail — trial — pleading — amendment to conform to proof.
    Where at the intersection of a road undergoing improvement by the State and a road under the jurisdiction of a town, the State constructed an embankment without guard rails, descending from the State road into and along the intersecting road for a considerable distance, so as to afford access to the State road, the level of which had been raised, the embankment is part of the intersecting road and under the jurisdiction-of the town, which is liable, to one who, because'of the absence of guard rails, was injured by driving over the side of the embankment in the night time.
    Where there is no misunderstanding on the trial as to where an accident occurred, and no objections made to plaintiff’s proof on that point, an amendment to the complaint to state the place more definitely does not prejudice the defendant.
    Appeal by the defendant, the Town of North Salem, from a judgment of the County Court of Westchester county in favor of the plaintiff against the said defendant, entered in the office of the clerk of said county on the 9th day of November, 19Q9, upon the verdict of a jury, for $500, and also from an.order entered in said clerk’s office on the 13th day of November, 1909, denying the said defendant’s motion for a new trial made upon the minutes.
    
      Frank L. Young, for the appellant.
    
      John R. Bushong [William, R. Condit and Charles Everett Moore with him on the brief], for the plaintiff, respondent.
   Carr, J.:

.The plaintiff has recovered a judgment' for personal injuries against the defendant town-, based upon the alleged negligence of the .town in failing to maintain a public highway in a reasonably safe condition for travel. It appears that on the night of the. accident the plaintiff was an occupant of a carriage which had been driven along the “ State Road ” in a neighborhood in the town of North Salem known as the Turk Hill section. This road'itself was undergoing improvement by the State under chapter 115 of the Taws of 1898, as amended. As the carriage came to an intersecting road., known as the Ridgefield road, and which was under the jurisdiction of the defendant town, it turned into the Ridgefield road, and about, ninety feet away from the corner of intersection it met with an accident in which the plaintiff was injured. It appears that the “ State Road ” had been so improved that its grade was raised above that of the intersecting road, and that for the purposes of access the State made an embankment from the side of file “ State Road ” descending into and along the intersecting Ridgefield road for a considerable distance. This embankment, which was permanent, had no protecting barriers to prevent travelers from losing their way in the night time and falling over its sides. The proof of the plaintiff was that the horse and carriage in question, while being driven with ordinary care, fell over the embankment about ninety feet away from the “ State Road.” If the defendant town had any duty to the public with relation to the condition of the highway at the place of the accident, the judgment should stand, as all questions of negligence and contributory negligence were submitted properly to the jury and the verdict is not against the weight of evidence nor excessive in amount, according to the proof. A reversal of this judgment is sought on the ground that the town is not liable to the plaintiff, on the theory that the place of the accident was a part of the “ State Road,” and our recent decision in Scott v. Town of North Salem (188 App. Div. 25) is cited in support of the contention. < In that case the question was one of pleading only, and this court held that the complaint did not state a cause of action, because, as this court construed the complaint, the' accident there in question was stated to have occurred on the State Road ” while in process of improve ment under the statute above cited. The proofs taken in this trial show the occurrence of the accident, not on the “ State Road ” itself, but on the Ridgefield road, and the question of liability presented is noc covered necessarily by our previous decision. We think that the embankment from which the carriage fell, though constructed by the State, was in all respects a part of the intersecting Ridgefield road, and under the jurisdiction and care of the town. The fact .that the State constructed it for the purpose of access to the “ State Road ”. did not make it any the less a part of the Ridge-field road, on which it was located. The record on appeal shows that there was no misunderstanding at the trial as to. the place where the accident actually occurred, arid no objections were made as to the proofs, offered by the plaintiff as to where it happened. So far as it may be necessary to amend the complaint to state more definitely the place of the accident, the defendant can suffer no real injury by the allowance of such amendment to conform ■with proofs given without objection.

Apart from the question of contributory negligence urged by the appellant, and which was disposed of by the jury, the sole ground of appeal is that the highway at the exact place of the accident must be deemed a part of the “State Road,” and not at that time under the jurisdiction of the town. As before stated, we think this contention is not correct,, arid an affirmance of this judgment is not in conflict with the views expressed in Scott v. Town of North Salem (supra). The motion to amend the complaint to conform with the proofs is granted, and the judgment and order denying the motion for a new trial are affirmed, with costs.

Present — Woodward, Jenks, Burr, Rich and Carr, JJ.

Judgment and order of the. County Court of Westchester county, unanimously affirmed, with costs.  