
    Hattie M. Waller, Respondent, v. The Town of Hebron, Appellant.
    
      Highways — the liability of a town for an accident is measured by that of the highway commissioner to it — the negligence of the highway commissioners not of the town, considered — the necessity of barriers, usually a question of fact — came as to a cross road distinguished from that of a village road — proof of other accidents — 1881, chap. TOO; 1890, chap. 568, §§ 16, IT. %
    In an action under the Highway Law to recover damages resulting from injuries caused by the alleged defective condition of one of the defendant’s town highways, if appeared that the plaintiff and her husband, who were riding in -a dog cart over a cross road about one mile long, on which only two families resided, passed northwesterly, j ust after passing a curve in the road, over a small bridge; just beyond the bridge the horse became frightened, jumped to the left and went down a declivity on the left side of the road, causing the vehicle to tip so as to throw the plaintiff out and injure her.
    The plaintiff recovered -upon the theory that there should have been a barrier along the side of the bridge-and its approaches, upon which point the evidence tended to show that upon either side of the bridge the traveled part of the highway was, for a considerable distance, substantially on a level with the bridge; that the horse went off the road about ten feet from the bridge where the ground upon the left side of the road was about thirty inches lower than the top of the road and the slope was at an angle of about forty-five degrees, and at the point where the plaintiff was thrown out the ground was about nineteen inches lower than the Center of the road. There had never been a barrier at this point, the place having been in the same condition for more than twenty years and no accident of this kind having ever occurred there before.
    
      Held, that the question was not whether the town was negligent in failing to erect a barrier, but whether there was a defect in the highway in that regard, existing because of the neglect of the commissioners of highways;
    That the care required of a highway commissioner -was only such as a reasonable and prudent person would ordinarily have exercised under the circumstances;
    That while as a general rule the necessity for barriers was a question of fact, there was always a preliminary question for the court as to whether there was any evidence upon which a jury could properly find a verdict for the party upon whom rested the burden of proof;
    That upon the facts of this case the town could not recover over against the commissioner of highways, and that, therefore, the plaintiff could not recover against the town;
    That the degree of care required of a highway commissioner as to a village road might be substantially different from that required of him in the case of a country cross road.
    
      
      Semble, that evidence that the hind wheel of the wagon of one person had gone off the road at the curve, and that upon another occasion the horse of another person fell over the bridge and lay in the creek, both these points having been passed by the plaintiff before the accident in question in the present case •occurred, was incompetent.
    Appeal by the defendant, The Town of Hebron, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 27th day of November, 1895, upon tile verdict of a jury rendered after a trial at the Washington Circuit, and also from an order entered in said clerk’s office on the 14th day of October, 1895, denying the defendant’s motion for a new trial.
    This action was brought to recover damages resulting from injuries caused by the alleged defective condition of one of the defendant’s highways.
    
      Edgar Hull and C. H. Spurges, for the appellant.
    
      Whitman & Enches and Potter & Lillie, for the respondent.
   Merwin, J.:

By section 16 of the Highway Law (Chap. 568 of the Laws of 1890) it is provided that “ every town shall be liable for all damages to person or property sustained by reason of any defect in its highways or bridges existing because of the neglect of any commissioner of highways of such town.” By section 17 it is provided that if in such a case a judgment is recovered against a town, the commissioner shall be liable to the town for the amount of the judgment, but the judgment shall not be evidence of the negligence of the commissioner in the action against him.

On the morning of August 4, 1892, the plaintiff was riding along a highway in the northwestern part of the town of Hebron, in a two-wheeled vehicle, called a dog cart, drawn by one horse. Her husband was with her, and he was driving. . As they passed northwesterly over a small bridge or culvert, the horse, just beyond the bridge, became frightened at something, in the direction of some bushes on the right-hand side of the road, and jumped sideways to' the left, going down a declivity on that side of the road. This operated to tip the vehicle, so that, after going about thirty feet, the plaintiff was thrown out and was injured. Eor the damages by her sustained, she has here recovered on the theory that the commisr sioners of highways of the town were negligent in omitting to maintain a harrier along the side of the bridge and the approaches thereto.

For some considerable distance upon either side of the bridge or' culvert, the traveled part of the highway was substantially on a level with the bridge. From the east, the road came down a side hill and then turned and crossed the bridge or culvert. This was about twelve feet long across the road, was narrow, and was constructed of stone resting on sides of stone. It was about three and one-half feet from the top of the culvert down to the surface of the water, which was quite shallow. From the hank of-the stream the ground westerly along the side of the road gradually raised until at about sixty feet from the bridge it reached the level of the road. The roadbed, as it left the culvert, narrowed up some, so that, about ten feet from the culvert, it was about nine feet wide, and continued, that width for about forty feet. At the point where the horse went off, which was about ten feet from the culvert, the ground on the-left side of the road was, according to the evidence on the part of the plaintiff, about two and a half feet lower than on the top of the road, and the slope was at an angle of about forty-five degrees.

From the bottom of the slope to the Avail on the margin of the road, a distance of about ten or twelve feet, it was about level, and was sodded, and there was a sodded hank along the roadway from the bridge westerly, and there was sod on the side of the roadbed. From the bridge- there were two tracks on the road, and these were worn more than the center, like an ordinary country road. At the point where plaintiff was thrown, the ground on the left-hand side was about nineteen indies lower than the center of the road. According to the evidence on the part of the defendant, the embankment was not so high or so steep as claimed by plaintiff.

On the right-hand side of the road the slant was of much less incline than forty-five degrees, was a very moderate slant.

There was no barrier or railing at the place in question, and never had been. It had been in the same condition for twenty years and upwards, and apparently bad been so constructed originally. It is on a cross road which is about one mile long; and on which two families reside, and which is considerably traveled for a cross road, and it runs through a good fanning section that has been settled and cleared for a long time. Some parts of the town are very hilly, and in the town there are 300 miles of highways and 300 bridges. There are three commissioners of highways.

It was not shown that any accident of this kind had ever occurred there before. A witness was permitted to testify, over the objection and exception of defendant, that at some time, the date not being given, he was driving a loaded double wagon along the curve in the road and one of the hind wheels got off the bank. Another witness was permitted to testify that in 1885 he saw one Collins driving easterly across the bridge, and his horse fell over the bridge and lay in the creek. It is very doubtful whether this evidence was competent. (Brady v. M. R. Co., 127 N. Y. 46; Ster v. Tuety, 45 Hun, 49 ; Thomas on Neg. 587.) No fault was found here' with the curve or the width of the bridge. The plaintiff had passed the curve and the bridge before the accident happened.

Upon the facts of the case the defendant claims that a cause of action was not made out within the purview of the statute. To support this contention the case of Lane v. Town of Hancock (142 N. Y. 510) is relied on. In that case the measure of the liability of a town in a case like the present was considered, and, although the facts of that case were somewhat different from the facts here, still the principles laid down by the court may be pertinent here. It was held that a town was not liable unless the negligence of the commissioner was such as to render him liable under the act to the town for a recovery had against it. And it was said at page 522 : “ "We think that this is a case where the town could never be able to recover against the commissioners upon the facts disclosed by the record, and that a recovery ought not to be had, and, for the same reason, no recovery should be had by the plaintiff against the town. The proof was not sufficient to charge the commissioners with personal negligence in the performance of the duties imposed upon them by law, and the motion for a nonsuit at the close of the case should have been granted.”

The Lane case was brought under the provisions of chapter 700 of the Laws of 1881, to which the provisions of the Highway Law, hereinbefore referred to, have succeeded, with no apparent intention of making the liability of a town any more burdensome or substantially different from what it was under the act of 1881.

The plaintiff insists that the case of Wood v. Town of Gilboa, (76 Hun, 175; affd. without opinion in 146 N. Y. 383) is authority to sustain the judgment here. The facts in that case do not fully appear in the report. The injury is stated to have resulted from “ falling down a steep embankment of a dug-way road in the village of Gilboa.” The particulars of the situation are not stated. The degree of care required of a commissioner as to a village road may be substantially different from that required as to a country cross road. (Glasier v. Town of Hebron, 131 N. Y. 447, 452.)

There must be such care and conduct on the part of the commissioner as a reasonable and prudent person would ordinarily have exercised under the circumstances of the situation. And, although as a general rule the necessity of barriers is a question of fact, still, as said in the Lane case (p. 519), “in every case there is always a preliminary question for the court as to whether there is any evidence upon which a jury could properly find a verdict for the party producing it and upon whom the burden of proof is imposed. If there is not, the court must direct a nonsuit or a verdict as the case may require. (Pleasants v. Fant, 22 Wall. 116, 120 ; Linkhauf et al. v. Lombard, 137 N. Y. 417; Hemmens v. Nelson, 138 id. 517: Filer v. N. Y. C. R. R. Co., 49 id. 47.) ”

The question is not, as suggested by the counsel for the plaintiff, whether the town was negligent in failing to erect a barrier, but whether in that regard there was a defect in the highway existing because of the neglect of the commissioners of highways.

Applying to the facts of this case the doctrine laid down in the Lane case, we are of the opinion that the evidence does not sustain the verdict.

All concurred.

Judgment and order reversed and a new trial granted, costs to abide the event.  