
    Lydia A. Glasier, Resp’t, v. The Town of Hebron, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 1, 1892.)
    
    Negligence—Highways—Liability of town fob unpbotected bbeae at SIDE OF BOAD—LAWS 1881, CHAP. 700.
    Plaintiff was driving along a town highway, seventeen feet in width, in good repair, but drifted with snow, when she met boys driving a sleigh loaded with coal barrels. At this point there was a break in the sheltering woods skirting the pond along the highway from eight to twelve feet wide. She stopped and called to the boys to pass; as they did so a barrel slipped off their sleigh and so frightened her horse that he backed off the .highway into the pond, upsetting plaintiff into the water. There was no -guard or fence along the break, but in order to get from the road to the water through this break one would have to turn his horse at right angles with the road and either drive or back it down to the pond. No accident had occurred for fifty years. Held, that to leave such a short distance unguarded was not sufficient evidence of negligence upon which to sulmit the case to a jury.
    Appeal from judgment" of the supreme court, general term, third department, affirming judgment in favor of plaintiff entered, upon verdict
    
      L. HI Northrop, for app’lt; J. Sanford Potter, for resp’t.
    
      
       Reversing 41 St. Rep., 747.
    
   Peckham, J.

The plaintiff. brings this action against the deto recover by her by reason of the negligence of the defendant. That negligence consisted,, as alleged by the plaintiff, in the failure on the part of the defendant to take proper care in guarding a public highway in the town,-, of Hebron, in consequence" of which negligence the road was unsafe and dangerous to travel over. The plaintiff alleged that on the 24th of March, 1888, while she was riding in a. cutter drawn by one horse .over the highway leading from West Pawlet toHebron, and known as the West Pawlet highway, and at a place-where it was but about twenty feet in width and ran along the top-of a steep embankment made above what was termed Reed’s-Pond, she was, without any fault or negligence on her part, thrown down the steep embankment on the northerly side of the highway and into the pond of cold and freezing water, where she remained some time, and by reason of which she sustained damage-in a stated sum. ■ ,

The alleged negligence was the failure of the defendant to place-a guard or rail at the point where the accident occurred so as to prevent any vehicle from being backed or drawn into the pond at. that point

The defendant denied the allegations of the complaint and the? parties went to trial upon the pleadings- at" a circuit court of Washington county. The uncontradicted evidence showed that, the highway in question at the point where the accident occurred was over seventeen feet in width and was in good repair and condition, except so far as it was affected by the snow" and the drifting thereof, caused by the great storm of March, 1888. At the point where the accident occurred there was a; break in the shelter of the woods which skirted the pond for most; of the distance along the highway, and that break was for a distance, varying by the evidence, between eight feet as the smallest, and twelve feet as the greatest distance. The highway skirted, the southern boundaries of the pond. There were also small bushes between the trees. It appeared quite clearly that in order-to get from the road to the water through this clearing or break in the woods one driving would have to turn his horse at right; angles with the road and either drive his horse or back it down, to the pond. There were a few other breaks of the same description where, as one of the witnesses said, there might be places-between the trees of sufficient width to permit a horse and cutter to reach the water from the highway if they went in backwards.

It is plain from the evidence that in no other way than directly at right angles with the road could a horse and cutter be driven, into or reach the pond- from the highway.

The way the accident in question happened, as related by the-plaintiff, was this: She was driving along the highway with a friend in the cutter behind one horse ; she had reached this point, in the road when she observed a team some little distance in front of her, and thinking that where she was was the best place to pass she stopped her horse and called out to the persons in charge of the team, who were boys, to come on and she would wait for them. This they did, and when at a point nearly opposite to her own horse and cutter, a barrel from the boys sleigh fell to the road just in front of or near to the plaintiff’s horse and frightened him so that he became unmanageable, faced towards the boys’ sleigh, turned the cutter so that it was towards the pond and then backed down the declivity from the highway to the pond, and. upset the plaintiff and her companion into the water. They remained in there clinging to a stump until they were rescued in. an. almost unconscious condition, when they were removed to a neighbor’s where they remained a few days greatly affected by their immersion in the water for so long a time and in such weather.

It appears by witnesses on the part of the plaintiff that they had known that highway from thirty to fifty years, and the plaintiff appears to have been familiar with it for a long number of years. Its condition was about the same as it always had been within the recollection of the witnesses, and the trees and bushes along its boundaries where it skirted the pond were all about the same height and nearness to each other as they had been during, that whole time. So far as appears no accident had ever occurred upon the highway of any nature, caused by the' absence of a guard or fence along these breaks in the woods.

This action is brought under chapter 700 of the Laws of 1881, which changes the law in regard to the liability of the towns of this state, and provides for their liability by reason of defective highways or bridges in cases in which commissioners of highways had theretofore been liable. Whatever may be the proper construction of this statute, we do not think that a case has been made out here within any meaning of that act. We think no negligence has been shown either on .the part of the town or any of its officers, including the commissioners of highways, at the time of the happening of the accident, or preceding it. We do not think that it was a fair question to be submitted to a jury as to the alleged negligence of the defendant. While it is said that a municipal corporation owes a duty of active vigilance to see that its streets and highways are maintained in a fairly safe condition, yet such expression, “ active vigilance,” is a relative term. What would be more than active vigilance under some circumstances, would be less than that amount under others. A thronged thoroughfare in a populous city would require much more attention in regard to its condition as to safety on the part of the officers of the corporation than would an ordinary highway running through .•a sparsely settled district of a town, and not along what might be regarded as a dangerous piece of country.

In this case we see an - ordinary country road which has been known for fifty years nearly, during which time, so far as appears, no- accident of the kind has ever occurred, and where the break in the woods skirting the boundary between the pond and the highway was of sucha short distance that in order to reach the pond it was necessary to turn one’s horse at right angles with the road and drive him or back him down to the water. To leave such a short distance, from eight to twelve feet, unguarded, we think was not sufficient evidence of negligence upon which to -submit the case to a jury. Ordinarily careful men, we think, would be excused if they neglected to see the necessity of placing a guard along those breaks to prevent possible access to the .pond. The distance was so short that if • in driving along the highway even on the darkest night the horse should lose his way and step off towards the pond, he would enter the woods before he could reach it, and it would only be by turning at right angles •directly that the pond could be reached at all, and then only through a very narrow opening. It was not an accident of a •character which was likely to happen, and there was no negli•gence in failing to guard against a very unlikely possibility.

We think this case comes within the principle decided in Hubbell v. City of Yonkers, 104 N. Y., 434; 5 St. Rep., 730.

For the reasons above given we think the plaintiff should have been non-suited, and the judgment must therefore be reversed and a new trial granted, with costs to abide the event..

All concur, except Andrews, J., not voting.  