Mason v. Town of Andes

Bliss, J. There can be no longer a doubt that under proper circumstances reasonable protection of the public traveling upon a town, county or State highway may require at dangerous points [355] the erection and maintenance of adequate barriers to both warn and guard and that the absence of such a barrier may be negligence. (Griffith v. Town of Colesville, 236 App. Div. 752; affd., 261 N. Y. 568; Huston v. County of Chenango, 253 App. Div. 56; affd., 278 N. Y. 646; Countryman v. State of New York, 251 App. Div. 509; affd., 277 N. Y. 586.) The rule of duty in such cases is one of reasonableness and sufficient protection for travel generally. (Roberts v. Town of Eaton, 238 N. Y. 420.) The Griffith case involved a town highway and a situation very much like the one at bar. It was a down grade macadamized town road with a one-foot sloping shoulder immediately adjacent to an abrupt declivity of about twelve feet, with no guardrail or other barrier. The highway was slippery. Plaintiff drove down this highway in second gear. He turned out when he met another vehicle and his car slipped sideways off the bank. This is a case where the defendant town had recognized the danger of a situation on a well-traveled gravelled road and had at one time placed a log barrier along the edge of the beaten track of the highway to keep vehicles from going over a precipitous bank. But for at least a month before this accident the barrier had been out of place so that there was no obstruction at all between the track and the top of the bank, although the track ran within only a foot of the edge and the road sloped toward it. A matter of inches marked the difference between safety and disaster. Due to the narrowness of the road, a curve and a steep pitch just ahead with the resultant poor sight distance, plaintiff was compelled to drive his car very close to this extremely dangerous and wholly unprotected edge. He was proceeding down grade in second gear at from ten to fifteen miles per hour. When he attempted to drive toward the right side of the road, the car slid over the edge of the embankment and was precipitated some thirty feet to the creek bed below. Its movement toward the edge was not direct but at an angle and the jury might very properly have found that even a small barrier would have averted this tragedy. The defendant itself proved that upon a previous occurrence at this same spot, when the barrier was in place, a loaded milk truck slid against it and was held from going over the bank. But on the day of this accident there was no barrier at all between the road and the top edge of the bank and so the accident happened. The trial court, in a charge that was without exception, very properly submitted to the jury the questions of the necessity and sufficiency of a barrier. The jury has found the facts in favor of plaintiffs and by the standards of those who reside in that section and are accustomed to travel' [356] so-called dirt or mountainous highways daily, has said that this was a place of danger which the town failed to properly protect. Even if we were of contrary opinion (which we are not), we should not substitute our view for that of the triers of the facts. The weight of the evidence amply supports the verdicts and they should not have been distrubed. The order should be reversed on the law and facts, with fifty dollars costs, and the verdicts reinstated. Hill, P. J., and Heffernan, J., concur; Schenck, J., dissents, in an opinion in which Foster, J., concurs.