
    Jesse L. Van Caasbeck, Resp’t, v. Town of Saugerties App’lt.
    
      (Supreme Court, General Term, Third Department
    
    
      Tiled December 4, 1894)
    
    L Towns—Commissioners—Negligence.
    Negligence on the part of the commissioner of highways may consist, as well in the omission to erect barriers in dangerous places in the highway, as in leaving the bed of the highway defective.
    2. Same—Question oe eact.
    Whether the town'is, or is not, negligent in failing to erect suitable railings or barriers along the side of a highway, is a question of fact for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes.
    
      Charles Davis (P. Cantine, of counsel), for app’lt; Carroll W-hitalcer (John J. Linson, of counsel), for resp’t.
   Herrick, J.

This is an appeal from a judgment in favor of the plaintiff and against the* defendant, for $1,600.55, damage, and costs, and from .an order denying a motion for a new trials The action is brought against the defendant for the neglect of a highway commissioner of the defendant to properly maintain the highway, or a portion thereof, between the city of Kingston and the village of Saugerties. The highway in question is a much-used highway. For a distance of several hundred feet within the town of Saugerties, the highway runs along the Esopus creek, and at a distance therefrom of from one to two hundred feet. The road is at a considerable elevation above the creek, the descent thereto being quite sharp. The ground also rises from the road upon the side furthest from the creek, with about equal abruptness. Upon the side of the road nearest the creek, for a distance of several hundred feet, there is a retaining wall, and the perpendicular distance from the surface of the road to the base of the retaining wall is between four and five feet. The portion of the road described is quite densely shaded by trees. At the point where the accident happened, the roadway is about fourteen feet in width. On a dark, misty, drizzling night, the plaintiff, in endeavoring to drive over this road, with a horse and wagon, went off the side of the road over the retaining wall, and received injuries for which this action is brought. There were no guard rails or barriers upon the side of the road towards the creek, and it does not appear that there ever had been any. It appears in evidence that during the last five years, to which period of time the court limited the inquiry, there had been several accidents to persons at the locality described, by driving off the side of the road. It also appears that the commissioner of highways of the town had been notified upon one or more occasions that it was a dangerous locality, and should be protected.

There was evidence sufficient, I think, to warrant the jury in finding that the plaintiff was not guilty of contributory negligence. There was evidence to show that, for several years prior to the happening of the accident, the commissioner of highways had annually sums, varying from between two and three thousand dollars to between four and five thousand dollars, which were expended in opening new roads, grading hills, filling up hollows or valleys, and erecting iron bridges, so that the question as to whether there was sufficient money in the hands of the commissioner to put the road in proper condition does not, it seems to me, arise.

The question as to whether the road at the place described was dangerous was one of fact for the jury. “ Negligence on the part of the commissioner of highways may consist as well in the omission to erect barriers in dangerous places in the highway as in leaving the bed of the highway defective." Ivory v. Town of Deerpark, 116 N. Y. 476; 27 St. Rep. 643; Bryant v. Town of Randolph, 133 N. Y. 70-76; 44 St. Rep. 75. And it is a question of fact for the jury to determine whether the defendant was or was not negligent in failing to erect suitable railings or barriers along the side of the highway. Wood v. Town of Gilboa, 76 Hun, 175; 57 St. Rep. 300. And upon both of these questions, as to whether it was a dangerous locality, and whether it was negligence not to erect some kind of a barrier, there was some evidence to submit to the jury. These questions were very clearly and fairly submitted by the trial court, and I can see no reason for differing from the conclusions at which the jury arrived.

The judgment should be affirmed, with costs.

Mayham, P. J., concurs in result; Putnam, J., concurs.  