
    George H. Hewett, Appellant, v. The Town of Thurman Respondent.
    Negligence— injury from being thrown down an embankment on a highway because of a hole therein ■—presumption, where a case has no certificate that it contains all the evidence.
    
    A person driving along a highway which, for a distance of about sixty-six feet, passed along the edge of a bank thirty feet high, the width of the roadbed from the inside of the road to the brink of the bank being about seventeen feet, and from the outside track to the brink from two feet to three feet five inches, was thrown out of his wagon and down the embankment in consequence of the right wheel of the wagon dropping into a hole from eight to twelve inches deep at the brink of the embankment at a point where there had been no barrier for several years, the former one having rotted down.
    In an action brought against the town to recover damages for injuries thus sustained there was evidence tending to show that the night was so dark that the plaintiff, although familiar with the locality, could not see the road, but depended on his horse, which was walking; that "there was a curve in the road at the place of the accident, and that if the horse had gone straight ahead he would have walked off the bank; and that neither the horse nor the wagon fell down the bank.
    
      Held, that the questions whether the commissioner of highways was negligent in failing to erect a barrier at that place, and whether the accident was attributable to such negligence, and whether the plaintiff was guilty of contributory negligence, were for the jury.
    Upon an appeal from a judgment dismissing a complaint, the Appellate Division, in the absence of a certificate that the case contains all the evidence, will assume that the respondent has procured to be inserted therein all the testimony deemed essential to sustain the ruling.
    Parker, P. J., and Herrick, J., dissented.
    Appeal by the plaintiff, George H. Hewett, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 11th day of August, 1898, upon the dismissal of the complaint by direction of the court after a trial at the Warren Trial Term.
    
      J. M. Whitman, for the appellant.
    
      J. A. Kellogg, for the respondent.
   Merwin, J.:

This action was brought to recover damages for personal injuries sustained by the plaintiff, as he claims, by reason of a defect in a highway of the defendant, existing because of the neglect of the commissioner of highways of the town. The case was brought to trial before the court and a jury, and at the close of the evidence the court granted the motion of the defendant for a nonsuit and to dismiss the complaint. The plaintiff excepted.

There is no certificate that the case contains all the evidence, but we must assume that the respondent has procured to be inserted in the case all the testimony deemed to be essential to sustain the ruling. (Rosenstein v. Fox, 150 N. Y. 354, 361.)

The question, then, is, was the case, as presented, one for the jury to determine %

At about ten o’clock in the night of June 11, 1897, the plaintiff was driving in a one-horse wagon along one of the principal highways of the town, at a place where the road for • about sixty-six feet passed along near the edge of a steep bank. There was no barrier. It was about thirty feet to the bottom of the bank. The width of the roadbed from the inside of the road to the brink of the bank was about seventeen feet, and from the outside track to the brink was from two feet to three feet five inches. The plaintiff was driving westerly, the grade was ascending and the declivity was at his right.

The plaintiff was familiar with the locality. He testifies that when he reached this place the night was very dark •— so much so that he could not see the road; “ could not see where the road ended and went over the bank; ” that he was driving on a walk ; held the lines in his hands; holding a good steady line on the horse because I could not see, and depended on the horse; ’’ that suddenly the right wheel dropped down, and he was thrown out of the wagon and down the embankment, receiving injuries for which he seeks here to recover damages. There is evidence tending to show that the wheel went down into a hole eight to twelve inches deep, just at the brink of the embankment. Neither the horse nor the wagon went down the bank. There had been a barrier at this place some years before, but it had rotted down. There was a curve in 'the road at this place, and there is evidence that if the horse Avent straight ahead he Avould go off the bank.

Whether or not the commissioner of highways Avas negligent in failing to erect at this place a proper barrier was a question of fact. (Wood v. Town of Gilboa, 76 Hun, 175; affd., 146 N. Y. 383 ; Maxim v. Town of Champion, 50 Hun, 88; affd., 119 N. Y. 626; Bryant v. Town of Randolph, 133 id. 70.) The evidence was, we think, sufficient to require the submission of the question to the jury. It was also for the jury to say whether the accident was attributable to the lack of a.barrier. (Ivory v. Town of Deerpark, 116 N. Y. 476, 486.)

The question of contributory .negligence is a closer one. Its solution depended largely upon the credit to be given to the testimony of the plaintiff. He was called upon to exercise reasonable care under the circumstances.

The cases of O' Dwyer v. O' Brien (13 App. Div. 570) and Caven v. The City of Troy (32 id. 154), cited by the respondent, are quite materially different from this case. The case of Titus v. Town of New Scotland (11 App. Div. 266) is nearer in point, and supports somewhat the position of the plaintiff. We think the question of contributory negligence was for the jury.

It is suggested that there was a material variance between the statement of the cause of action presented to the supervisor, as required by the Highway Law, and the cause of action relied on at the trial. We think not. .

' All concurred, except Parker, P. J., and Herrick, J., dissenting.

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