Bliss, J.
The plaintiffs’ intestate, a girl fourteen years old, was drowned on the evening of October 25, 1933, when an automobile in which she was riding went off a county road along the southerly side of the Susquehanna river between the villages of Afton and Bainbridge, Chenango county. At the point of the accident the highway had a twelve-foot wide macadam pavement. Along the northerly or river side was a three-foot grass and weedy shoulder and then a bank which sloped twenty-two and one-half feet in thirty-seven and one-half feet to the water’s edge. The water was over five feet deep. There were no guard rails or other barriers between the edge of the macadam and the water. A driveway turned off of the south side of the macadam into a set of farm buildings. There had been a sleet storm that afternoon and the grass and weeds were slippery. This girl was a passenger and was on her way to attend a party. At about seven-thirty p. M. two of the occupants of the car, an Overland sedan weighing 2,120 pounds, inquired at the dwelling house immediately west of this driveway for directions to the scene of the festivities. The car was then headed easterly and had stopped in front of this dwelling. The headlights were on. After the inquiry a shifting of its gears was heard as the car started up. The party was to be held at a place some distance to the west so that it was necessary for the car to be turned around in order to proceed to its destination. An hour and a half later one of the occupants of the farm house saw a strange light in the water of the river. Help was summoned and the car was found upright and completely submerged in the river. All seven of its occupants had been drowned. An examination of the roadway and bank showed that the car had been driven about ten feet into the driveway and backed out toward the east; that in backing the car had gone diagonally across the macadam, [58]*58the three-foot shoulder and down the steep bank into the water. The tracks also showed that on the shoulder and down the bank the rear wheels of the car were either sliding with the brakes on or tinning in a forward direction. The car itself was in low gear when taken out of the water. At no other point along this road from Bainbridge to Afton, a distance of over five miles, was the top of the river bank so close to the edge of the macadam. The trial court submitted the case to the jury under the usual rule of reasonable care and charged that it was for the jury to say whether such an accident should have reasonably been foreseen and if reasonable care prompted some kind of a warning or barrier along the highway. From a verdict for plaintiffs, defendant appeals.
The appellant claims that the instant case comes squarely within the rules laid down by the Court of Appeals in Roberts v. Town of Eaton (238 N. Y. 420). That was a case where an automobile was being driven along a frozen, slippery, deeply rutted dirt town road. In attempting to turn out of the ruts upon meeting another car, the car was driven ahead with some force, the wheels struck the grass, snow and ice beside the road and it slid over the bank and upset.
Judge Pound, writing for an unanimous court, there said:
“ Defendant was not obliged to construct a barrier sufficiently strong to hold a heavy car from going over such a declivity. (Corcoran v. City of New York, 188 N. Y. 131; Best v. State of New York, 203 App. Div. 339; affd., 236 N. Y. 662.) All that was required of it was that it should erect such a railing, if any, as would be a sufficient protection for travel generally.
“ The town was not bound to exercise extraordinary care to guard against unusual accidents. ‘ The limit of duty on the part of a towm with regard to the condition of its highways falls far short of making them absolutely safe, under all circumstances, even for those who use them properly.’ (Lane v. Town of Hancock, 142 N. Y. 510, 521.) The risk here was not enhanced by the lack of any ordinary barrier. It arose out of a combination of unforeseen circumstances against which the exercise of ordinary care would have afforded no protection.
“ The rule of duty in such cases is one of reasonableness. While the general use of motor vehicles has developed a new class of risks, it is not incumbent on the towns to anticipate and guard against every danger that may attach to the operation of automobiles over country highways. To impose on towns the burden either of constructing substantial barriers at every point of possible danger or of paying damages when unusual accidents occur which such barriers might have prevented, would be to advance the [59]*59present measure of liability beyond the rule of ordinary care into the field of insurance against accidental injury or death.
“ Where it is unreasonable to charge the town with the duty of maintaining barriers sufficient to prevent all accidents the court will declare non-liability as a matter of law.”
The court also stated that it was not contended that a barrier was needed as a warning against obvious dangers.
Little aid is to be had from an historical review of the precedents. The cases are ably collected and discussed by Judge Taylok of the Fourth Department in Cotriss v. State (223 App. Div. 520). Suffice it to say that there has been a disposition on the part of the courts to hold that no liability is imposed upon the municipality where the only dereliction in duty is the failure to erect a barrier of sufficient strength tc prevent an automobile from breaking through it, even when traveling at a not unreasonable rate of speed. Nor need the municipality guard against accidents not reasonably foreseeable — not the particular accident but that type of accident. But even considered in the fight of this trend of authority against liability, there is still a question of fact in the case at bar. Of all the five or six miles of highway winding along the southerly side of the Susquehanna river from Bainbridge down to Afton, this spot was one of the most dangerous. Here the steep bank came closest to the road’s pavement. Here the deep water of the river, a precipitous bank, an extremely narrow shoulder and a meager pavement all combined to make this spot unusually perilous for the automobifist. Added to this was the driveway with its invitation of use for the common purpose of turning around.
While the general principles governing liability as stated in the Roberts case are just as true today as they were when enunciated, conditions of travel have changed greatly since the happening of the events which gave rise to that litigation. The automobile traveler of today is more adequately protected, both by warnings of danger and protection against his car’s leaving the traveled portion of the highway. He may expect more in the way of protection and may rely to a greater extent upon the absence of the usual warning signs. All classes of highways have been made much safer. Those which have been improved or are now maintained as a part of the county systems are suited for safe automobile travel at speeds far in excess of those prevalent a few years ago. The smooth pavements induce speed. A railing which in 1921 would have been a sufficient protection for travel generally would not be such today. A highway which required no warning of or protection from danger to travelers then might demand otherwise today. That which was then an unusual accident might be [60]*60quite common today.
Free access — add to your briefcase to read the full text and ask questions with AI
Bliss, J.
The plaintiffs’ intestate, a girl fourteen years old, was drowned on the evening of October 25, 1933, when an automobile in which she was riding went off a county road along the southerly side of the Susquehanna river between the villages of Afton and Bainbridge, Chenango county. At the point of the accident the highway had a twelve-foot wide macadam pavement. Along the northerly or river side was a three-foot grass and weedy shoulder and then a bank which sloped twenty-two and one-half feet in thirty-seven and one-half feet to the water’s edge. The water was over five feet deep. There were no guard rails or other barriers between the edge of the macadam and the water. A driveway turned off of the south side of the macadam into a set of farm buildings. There had been a sleet storm that afternoon and the grass and weeds were slippery. This girl was a passenger and was on her way to attend a party. At about seven-thirty p. M. two of the occupants of the car, an Overland sedan weighing 2,120 pounds, inquired at the dwelling house immediately west of this driveway for directions to the scene of the festivities. The car was then headed easterly and had stopped in front of this dwelling. The headlights were on. After the inquiry a shifting of its gears was heard as the car started up. The party was to be held at a place some distance to the west so that it was necessary for the car to be turned around in order to proceed to its destination. An hour and a half later one of the occupants of the farm house saw a strange light in the water of the river. Help was summoned and the car was found upright and completely submerged in the river. All seven of its occupants had been drowned. An examination of the roadway and bank showed that the car had been driven about ten feet into the driveway and backed out toward the east; that in backing the car had gone diagonally across the macadam, [58]*58the three-foot shoulder and down the steep bank into the water. The tracks also showed that on the shoulder and down the bank the rear wheels of the car were either sliding with the brakes on or tinning in a forward direction. The car itself was in low gear when taken out of the water. At no other point along this road from Bainbridge to Afton, a distance of over five miles, was the top of the river bank so close to the edge of the macadam. The trial court submitted the case to the jury under the usual rule of reasonable care and charged that it was for the jury to say whether such an accident should have reasonably been foreseen and if reasonable care prompted some kind of a warning or barrier along the highway. From a verdict for plaintiffs, defendant appeals.
The appellant claims that the instant case comes squarely within the rules laid down by the Court of Appeals in Roberts v. Town of Eaton (238 N. Y. 420). That was a case where an automobile was being driven along a frozen, slippery, deeply rutted dirt town road. In attempting to turn out of the ruts upon meeting another car, the car was driven ahead with some force, the wheels struck the grass, snow and ice beside the road and it slid over the bank and upset.
Judge Pound, writing for an unanimous court, there said:
“ Defendant was not obliged to construct a barrier sufficiently strong to hold a heavy car from going over such a declivity. (Corcoran v. City of New York, 188 N. Y. 131; Best v. State of New York, 203 App. Div. 339; affd., 236 N. Y. 662.) All that was required of it was that it should erect such a railing, if any, as would be a sufficient protection for travel generally.
“ The town was not bound to exercise extraordinary care to guard against unusual accidents. ‘ The limit of duty on the part of a towm with regard to the condition of its highways falls far short of making them absolutely safe, under all circumstances, even for those who use them properly.’ (Lane v. Town of Hancock, 142 N. Y. 510, 521.) The risk here was not enhanced by the lack of any ordinary barrier. It arose out of a combination of unforeseen circumstances against which the exercise of ordinary care would have afforded no protection.
“ The rule of duty in such cases is one of reasonableness. While the general use of motor vehicles has developed a new class of risks, it is not incumbent on the towns to anticipate and guard against every danger that may attach to the operation of automobiles over country highways. To impose on towns the burden either of constructing substantial barriers at every point of possible danger or of paying damages when unusual accidents occur which such barriers might have prevented, would be to advance the [59]*59present measure of liability beyond the rule of ordinary care into the field of insurance against accidental injury or death.
“ Where it is unreasonable to charge the town with the duty of maintaining barriers sufficient to prevent all accidents the court will declare non-liability as a matter of law.”
The court also stated that it was not contended that a barrier was needed as a warning against obvious dangers.
Little aid is to be had from an historical review of the precedents. The cases are ably collected and discussed by Judge Taylok of the Fourth Department in Cotriss v. State (223 App. Div. 520). Suffice it to say that there has been a disposition on the part of the courts to hold that no liability is imposed upon the municipality where the only dereliction in duty is the failure to erect a barrier of sufficient strength tc prevent an automobile from breaking through it, even when traveling at a not unreasonable rate of speed. Nor need the municipality guard against accidents not reasonably foreseeable — not the particular accident but that type of accident. But even considered in the fight of this trend of authority against liability, there is still a question of fact in the case at bar. Of all the five or six miles of highway winding along the southerly side of the Susquehanna river from Bainbridge down to Afton, this spot was one of the most dangerous. Here the steep bank came closest to the road’s pavement. Here the deep water of the river, a precipitous bank, an extremely narrow shoulder and a meager pavement all combined to make this spot unusually perilous for the automobifist. Added to this was the driveway with its invitation of use for the common purpose of turning around.
While the general principles governing liability as stated in the Roberts case are just as true today as they were when enunciated, conditions of travel have changed greatly since the happening of the events which gave rise to that litigation. The automobile traveler of today is more adequately protected, both by warnings of danger and protection against his car’s leaving the traveled portion of the highway. He may expect more in the way of protection and may rely to a greater extent upon the absence of the usual warning signs. All classes of highways have been made much safer. Those which have been improved or are now maintained as a part of the county systems are suited for safe automobile travel at speeds far in excess of those prevalent a few years ago. The smooth pavements induce speed. A railing which in 1921 would have been a sufficient protection for travel generally would not be such today. A highway which required no warning of or protection from danger to travelers then might demand otherwise today. That which was then an unusual accident might be [60]*60quite common today. A factual situation which would then have been held as matter of law to have created no liability on the part of the municipality would not serve as a norm today. Each case must be judged by itself and in the light of the conditions now prevailing.
We may not say with legal certainty that the absence of all warning of this dangerous spot did not lull the driver into a false sense of security. The failure to warn of the danger was negligence and a cause of this disaster. The failure to erect a barrier of sufficient strength to have held this car or any other traveling under ordinary circumstances was also a cause contributing to the occurrence and to liability. As cars go nowadays this Overland was comparatively light in weight. It had run backward but a few feet and could have gathered but little momentum. Its rear wheels were sliding from action of the brakes or were tinning forward. There was nothing to prevent one coming out of the driveway from going straight over the bank. Barriers such as we daily see in common use along highways of this class would have held this small car. These are all proper inferences from the established facts. The county failed in its duty to warn and to protect. Applying the principles of the Roberts case to these facts in the light of present standards, we may properly say within the very language of that case that the defendant had failed in its duty to erect such a barrier as would be a sufficient protection for travel generally. Under these same modern highway safety precautions the jury below has correctly held the appellant liable for the death of this girl. The question as to what reasonable care requires is usually one of fact for a jury and under the particular combination of circumstances here, all pointing to the necessity of a barrier both for purposes of warning and protection, this court may not properly say that no negligence on the part of the municipality was shown. (Griffith v. Town of Colesville, 261 N. Y. 568; Countryman v. State of New York, 251 App. Div. 509.)
A county is now hable for negligence in the maintenance of its highways. (County Law, § 6.) But appellant contends that the respondents did not show that this was a county highway. The farmer living at the scene of the accident testified that this was a “ county road.” The county superintendent of highways said that during the construction of the macadam pavement he was the engineer in charge and that it was built under bis supervision. The entire case was tried and submitted in the apparent belief by the court and counsel alike that this was a county highway. It was so alleged in the complaint and not disputed on the trial. [61]*61The county may not now be heard at this late date to disclaim liability upon the theory that this was not a county highway.
Appellant also complains because the respondents were permitted to show that certain guard rail posts appearing in a photograph of the scene of the accident taken some time later and offered in evidence by the appellant, were not there at the time of the accident. The photograph was received upon proof by appellant that it was a fair representation of the highway at the scene of the accident. Under these circumstances the respondents had a right to show that the guards appearing in the photograph were not present at the time of the accident.
The judgment and order should be affirmed, with costs.
Hill, P. J., and Rhodes, J., concur; McNamee, J., dissents, with an opinion in which Crapseh, J., concurs.