
    CLEVELAND v. TOWN OF PITTSFORD.
    (Supreme Court, General Term, Fifth Department.
    October 20, 1893.)
    Highways—Defects—Contributory Negligence.
    In an action against a town for injuries caused by the alleged defective condition of a highway, it appeared that at the intersection of two roads the traveled roadway of one separated into two tracks, turning in opposite directions, up an incline into the other road. Between these tracks the surface was about two feet higher than the tracks. This space had never been used or prepared for traveling. At the time of the accident there was a deep snow on the ground. Plaintiff, while attempting to drive from one road down the incline into the other went upon the elevated space between the two tracks; his sled upset, and he was injured thereby. He had been driving over the road all his life, and was thoroughly familiar with it. " Held, that plaintiff was guilty of contributory negligence, and could not recover.
    Action by Charles C. Cleveland against the town of Pittsford. Plaintiff moves for a new trial on exceptions ordered to be heard at the general term in the first instance, after a nonsuit at the Monroe circuit.
    Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
    George F. Slocum, for plaintiff.
    George F. Yeoman, for defendant.
   LEWIS, J.

This action was brought to recover damages alleged to have been sustained by the plaintiff by being overturned in the highway in consequence of its defective condition, in the town of Pittsford, Monroe county. There is in the town a country highway, running southerly from the village of Cartersville, and known as “East Street” or “Cartersville Road.” Intersecting this road at a point south of Cartersville is a highway running easterly, and nearly at right angles to the Cartersville road, to what is known as “Rich-' ard son’s Mill.” The latter highway is known as “Mill Street.” There is quite an ascent in the road as you leave Mill street to go upon East street. The traveled roadway on Mill street separates into two tracks as it enters East street, one turning to the north and the other to the south. Between these two tracks, at the junction of the two streets, is a portion of the highway the surface of which is some two feet or more higher than the northerly track. This higher portion of the highway had never been used for traveling; the vehicles, as stated, passing upon either one side or the other of it. The surface of this elevated place descends northerly and southerly towards the tracks mentioned. On the 21st of January, 1892, the plaintiff was going from Cartersville northerly along East street, intending to pass down Mill street to Richardson’s mill. He had a team of horses drawing a load of 100 empty barrels, and in attempting to turn down into Mill street from East street his load was upset, and he was quite seriously injured, and he brought this action to recover for the damages he sustained, alleging that his injuries were caused by negligence on the part of the defendant in permitting the highway to be out of repair. The trial court non-suited the plaintiff, and directed the motion for a new trial to be heard at the general term in the first instance.

The knoll between the two tracks referred to was at the time of the accident covered with snow of the depth of from 18 to 24 inches, which was lying upon the ground as it had fallen, and had not been disturbed by anything passing over it. The plaintiff was perfectly familiar with the highway. He testified that he had been driving over it all of his lifetime; had known it from the time he was a boy, and he was at the time of the accident 65 years of age. He knew this elevated portion of the road had never been used for driving over; that it had never been prepared for that purpose, and was not intended to be used for travel. His barrel rack was upon a pair of bobsleighs, was 21 feet 10 inches long, 3 feet and 6 inches wide where it rested upon the bobs, and 8 feet 4 inches wide at the top of the rack. Plaintiff testified that when he came to the turn in the road he drove his team on past the center of the road over the knoll between the two tracks, and attempted to draw his sleigh over this knoll between the two tracks, intending to go down straight into Mill street; and that as he drove his horses down the hill his load upset, falling to the northerly. Mr. Basset, a witness sworn for the plaintiff, who resided in a house at the head of Mill street, testified that he was standing at his window when the plaintiff drove up; that he stopped right in front of the witness’ house with a load of barrels; that he then started up, made Ms turn for down Mill street, and as his forward bobs went over the knoll they pitched off sidewise, and that raised his Mnd bobs, and threw his load right over to the north. He further testified that there were two beaten tracks,—one coming from the north, going down 'Mill street; the other from the south,—and that in between these two roads there was a spot of ground, where Mr. Cleveland attempted to turn, that was all covered with snow, and no tracks or nothing to be seen there; even a man’s foot was not through there. The snow was from a foot and a half to two feet deep at that place. That there was a rise of about two feet and a half from the wagon track on the northerly side up to the level of the middle of the road where the plaintiff attempted to drive. That “there was a little bit of a hill right there, and as the forward bob of the runner, or near runner, I would say, struck into that, that raised the hind bob, and threw him right square over into the road. The front bob dropped off there a little; that is just what carried him over.” It is apparent that the plaintiff was guilty of negligence contributing to his injuries. He was familiar with the surroundings. He knew the uneven condition of the highway, and was aware of the ease with which his top-heavy load might be upset; and should have known that an attempt to drive over the place he did must almost inevitably result in overturning his load. He could as well have driven into a ditch upon the side of the road, and expected his load to remain intact. He complains of the uneven condition of the surface of the highway. He knew that the place in the road where he was driving was not prepared nor intended to be used by the public. It is true it was in the highway, but the authorities had not, neither were they obliged to, prepare the entire width of the road for the public use. There was a considerable descent from the top of the knoll to the tracks, but it was not intended for driving. Such uneven places are to be found upon every country road. It is quite common for the public authorities to prepare a track for driving in dry weather, and a parallel one, at a considerable elevation, to be used in the rainy seasons; and it could hardly be claimed, if the plaintiff had been attempting to pass from one of such tracks to the other, and had upset, the town would be held liable for damages. The plaintiff also claims that the northerly track, leading from East street into Mill street, had been encroached upon by a fence post, and that thereby the turn had been made more difficult. If so, it did not justify him in driving over a place where he was almost certain to upset his load. There was evidence showing that Mr. Bobbins, the owner of the land adjoining the two streets, had, by the permission of the highway commissioner, put the corner of his fence out into the old beaten track around the corner. Mill street had been used for many years, but had never been surveyed, and a record made of its location, until a short time prior to the accident. The highway commissioner had caused a survey of it to be made, and located the northeast corner of the two streets mentioned, and consented to the building of the fence mentioned, which, as stated, did encroach to some extent upon the old traveled road. We do not deem it necessary to discuss the question of the right of the \ highway commissioner to give permission to Bobbins to build the fence. The plaintiff knew of the alteration of the fence. He knew that it somewhat narrowed the highway as it had been theretofore used, and concluded to make the hazardous-experiment of driving over the knoll with the result stated. We think he failed to show himself free from negligence contributing to his injuries, and that the trial court made the proper disposition of the case. The motion for a new trial should be denied, and judgment ordered for the defendant upon the nonsuit. All concur.  