
    Victor M. Sutphen, Resp't, v. Town of North Hempstead, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 27, 1894.)
    
    
      1. Towns—Highways—Negligence.
    A gutter along a highway, with the vertical side towards the traveled track, is not such a defect as will render the town liable to one who is -injured from running his bicycle too near the edge.
    2. Same.
    The injury, in this case, was held to have resulted from contributory negligence.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      A Britton Havens, for app’lt; Harrison S. Moore, for resp’t.
   Brown, P. J.

—The accident which resulted in the plaintiff’s in-j uries occurred upon a public highway in the town of North Hemp-stead about sundown on an evening in August, 1892. The highway ran east and west on a hill, upon the top of which it passed through a deep cut. A gutter or ditch existed upon the side of the road to carry off the surface water. Shortly before the accident, the commissioner of highways had deepened the ditch, and at the place of the accident the bottom was about two-and-a-half feet below the crown of the road. The side next to the beaten track was cut down vertically about a foot or eighteen inches. The beaten track of the road was about twenty-five feet wide, and extended right up to the side of the gutter, and was in good condition. The soil was sandy, and the wheels of vehicles passing over it sank into it a few inches. There was no sidewalk, and pedestrians walked along the edge of the road nearest the gutter, and, as a result of this, the surface there was packed harder and the road was smoother than elsewhere. The plaintiff, alad between twelve and thirteen years of age, was riding a bicycle, and, finding that his machine cut into the soft sand in the middle of the road, he turned into the smooth track near the gutter and rode within a few inches of the vertical side. The front wheel cut through the soft earth, and, the side of the gutter giving way, he was thrown from his machine and received the injuries complained of. There was nothing to obscure from plaintiff’s view the gutter,0 or the manner of its construction, and he testified that there was light enough for him to see the road, and that he could have seen the gutter if he had looked at it. In our opinion, the town was not chargeable with negligence upon the facts stated, and the complaint should have been dismissed. The gutter into which plaintiff fell was not an obstruction in the highway, but was constructed to carry off the surface water flowing from the hill, and thus keep the road in a proper condition for travel, and no negligence can be imputed to the commissioner of highways from the fact of its existence. No claim is made that the road itself was not in good order and safe for the ordinary uses of a highway in the country. It was of ample width for all kinds of travel, and the injury which plaintiff received was primarily due to the fact that he rode his vehicle so near to the gutter that the wheel cut through the soft ground and caused his fall. Reasonable care in the construction and maintenance of highways is the measure of duty resting upon the commissioners of the town, and municipalities are not liable for injuries, the result of accidents which are not, by the exercise of reasonable forethought and prudence, to be anticipated. The case is within the rule applied in Hubbell v. City of Yonkers, 104 N. Y. 434; 5 St. Rep. 730; and Glasier v. Town of Hebron, 131 N. Y. 447; 43 St. Rep. 319.

The negligence of which it is claimed the commissioners were guilty was—First, constructing the gutter with a vertical side next to the roadway; and, second, omitting to erect a rail or guard between the gutter and the road. The highway was not dangerous to persons using it with ordinary vehicles by reason of either of these facts. It was twenty-five feet wide—a space on which four wagons could stand abreast—and there was no occasion for any one to ride upon the extreme edge of the road near the gutter; and the fact that the soil was soft, into which a wheel would sink, counteracted any damage which might have existed if the vertical edge of the gutter had been cut through solid material. The accident which happened to the plaintiff was unusual, and incidental to the character of the vehicle he was riding. It was not one within the anticipation or apprehension of a reasonable, prudent man, and there was, therefore, no occasion for extraordinary precautions to prevent it. It cannot be successfully claimed that a larger measure of duty on the part of the commissioners of highways is due to bicycle riders than to persons traveling upon the road in ordinary vehicles. It is apparent that a bicycle rider upon an ordinary country road is exposed to greater dangers than a person riding in a wagon, and the great increase in the users of these vehicles has created a demand for better and safer roads, but under the present highway laws a road in a condition which is reasonably safe for general and ordinary travel is all that the commissioners of highways are bound to maintain. The road in question was safe for travel in ordinary vehicles and on foot, and the evidence did not, -in our opinion, permit the conclusion by the jury that the defendant was negligent in its construction and maintenance. The plaintiff was also guilty of contributory negligence. In his desire to find that part of the road best suited to his mode of travel, he rode so near the edge of the gutter as to cause the accident. He failed to observe conditions which were open to his observation, and which he could have seen if he had looked; and was therefore guilty of such1 carelessness as deprives him of the right to recover.for his injuries. Weston v. City of Troy, 139 N. Y. 281; 54 St. Rep. 493.

The judgment must be reversed, and a new trial granted, with costs to abide the event

All concur.  