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Under the provisions of the Highway Law (Sec. 16, chap. 568, Laws 1890) "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 negligence of any commissioner of highways in such towns. * * *" Under this law, as under the statute of 1881, the negligence of the highway commissioner is still
the basis of liability and the town is liable for his neglect only in the cases where he was liable himself before the statute was enacted. (Lane v. Town of Hancock, 142 N.Y. 515.) It is not necessary in this discussion to recite in detail the duties of highway commissioners of towns. Stated in general terms, reasonable care in the construction and maintenance of highways is the measure of duty resting upon the highway commissioners of towns, and such municipalities are not liable for injuries which result from accidents that are not to be anticipated in the exercise of reasonable forethought and prudence. The expression "reasonable care" is, of course, purely relative, and must be applied to the circumstances of each particular case. What would be reasonable care in a given instance might amount to gross negligence in another.
The sole question presented for our decision upon this appeal is whether it can be held as matter of law that the defendant's commissioner of highways did exercise the degree of care required by the situation which he created and which made possible the accident in which the plaintiff was injured. The highway commissioner undertook to repair the sluiceway in question and left the highway in the condition which existed when the accident occurred. In this respect the case at bar is distinguishable fromLane v. Town of Hancock (supra); Glasier v. Town ofHebron (131 N.Y. 447); Monk v. Town of New Utrecht (104 N.Y. 552) and other cases relied upon by the defendant, where the question was whether the highway commissioner was negligent in not guarding against dangers which were not of his own creation. In such cases the rule of reasonable care has frequently been applied to existing conditions from which no danger would be anticipated by a commissioner of highways in the vigilant and prudent discharge of his duties; or to conditions of topography, weather, area of highway district and other matters so far beyond his practical control as to enable the courts to hold as matter of law that he was guilty of no negligence. In the case before us, we have an entirely different
question. A highway that was perfectly safe for travel was torn up by the highway commissioner for the purpose of improving a sluiceway. At the close of the day on which the work was undertaken there was an open excavation between twenty and thirty inches in depth, seven feet in width and about sixteen feet in length across the highway. That such an excavation, unguarded on a dark night, might be dangerous to the wayfarer is too apparent for discussion. It was, therefore, the obvious duty of the highway commissioner to protect this place of danger with suitable and sufficient lights, guards or barricades. (Deming
v. Terminal Ry. of Buffalo 169 N.Y. 10.) The necessity for some degree of protection was evidently appreciated by the highway commissioner, for he attempted to guard against accident by placing the tile which had been taken out of the excavation across the traveled part of the highway in the manner indicated. That the so-called barricade did not serve the purpose for which it was intended is shown by the result. Had there been no attempt to barricade or guard this place of danger the highway commissioner would have been clearly guilty of negligence. (Chisholm v. State of N.Y., 141 N.Y. 246.) The question presented on the facts disclosed by the record is whether the defendant's highway commissioner exercised reasonable care and prudence in attempting to guard it. Could it be held as matter of law that the defendant is liable simply because the barricade proved to be insufficient? Certainly not. Can the court hold as a legal proposition that the highway commissioner had done his full duty, because there was evidence that it had not been customary for his predecessors in office to use lights in connection with barricades? We think not. The night was dark. A jury would have been authorized to find that the barricade could not have been seen without a light. The plaintiff and her husband had the right to assume that the highway was safe. (Weed v. Vil. of BallstonSpa, 76 N.Y. 329; Pettingill v. City of Yonkers, 116 N.Y. 564. ) It was the duty of the highway commissioner to guard against such dangers as could or ought to have been anticipated or foreseen in the
exercise of reasonable prudence and care. (Beltz v. City ofYonkers, 148 N.Y. 67.) All of the evidence and the circumstances which throw light upon the situation are to be considered in determining whether this degree of prudence and care was exercised in the case at bar. Unless all of these things taken together point so conclusively in one direction that there is no chance for dispute or argument, the question cannot be decided by the court as one of law, but must be submitted to the jury as one of fact. (Weed v. Village of Ballston Spa, 76 N.Y. 329;Ivory v. Town of Deerpark, 116 N.Y. 476; Chisholm v. Stateof N.Y., supra; Fordham v. Gouverneur Village, 160 N.Y. 541.)
The judgment herein should be reversed and a new trial granted, with costs to abide the event.
PARKER, Ch. J., BARTLETT, MARTIN, VANN and CULLEN, JJ., concur; HAIGHT, J., dissents.
Judgment reversed, etc.