William H. Osterhout, Respondent, v. The Town of Bethlehem, Appellant

William H. Osterhout, Respondent, v. The Town of Bethlehem, Appellant. Negligence — injury from a rut in a townhighway — test of the town’s liability—• what clefect calls for repair — constructive notice—liability of the commissioner to the town. In an action to recover for injuries occasioned by the plaintiff’s falling from.his wagon upon a town highway because of a rut or hole therein, the test of the liability of the town is the negligence of the highway commissioner. A hole or rut in a town highway ten inches deep, caused by the natural wear of wagon wheels in the spring of the year, is not such a defect as calls for the repair thereof by the highway commissioner. In order to impute constructive notice to the commissioner the hole or rut must have existed in a dangerous condition for such a length of time that the commissioner, in the exercise of reasonable" care, might have ascertained its condition. Semble, that if the commissioner has been negligent and has thereby created a liability against the town, he is liable over to the town for any judgment recovered against it. Appeal by the defendant, The Town of Bethlehem, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 3d day of April, 1900, upon the verdict of a jury for $700, and also from an order entered in said clerk’s office on the 12th day of April, 1900, denying the defendant’s motion for a new trial made upon the minutes. Upon the 30th day of March, 1899, plaintiff was injured by falling from his wagon upon a highway in the defendant town. The main contention upon the trial was upon the question of the negligence of the defendant’s highway commissioner. The plaintiff claimed that he suffered a rut or hole, from twenty to twenty-two inches deep, to remain in the highway. The defendant claimed that the rut was an ordinary rut not, over six or eight inches deep. There is no proof, and no claim, of actual notice to the commissioner of the existence of the alleged defect. It is claimed, however, that this defect had existed a little upwards of two weeks. The exact depth of this rut or hole, which apparently has caused this injury, was a matter of controversy upon the trial. The plaintiff himself was unable to give any description. The plaintiff’s brother, however, swore that upon the day succeeding the injury he measured the -hole, as he called it, and it was then found to be two and one-half feet long, from twenty to twenty-two inches deep and about a foot wide. Charles Becker,, a brother-in-law of the plaintiff, swore that he passed the hole three or four days before the accident, and that it was then about a foot and a half long and “ eight or ten, six or eight inches ” deep. He later swore that it was about a foot long and three or four inches wide, and that the deepest part was from six to eight inches. Henry Mallory, sworn for the plaintiff, testified that it was a sort of a longisk rut about a foot or a foot and a half long, about six or eight inches deep and a little wider than the tire, probably four inches. For the defendant, Joseph Hallenbeck swore that it was about eighteen inches long, six inches deep and six inches wide. Edward Gainsley, sworn for the defendant, testified that it was about a foot and a half long, between six and eight inches deep and four inches wide. William McCullogh, sworn for the defendant, testified that it was eighteen or twenty inches long, four or five or six inches deep and four or five inches wide. Aaron B. Arnold, for the defendant, swore that it might have been a foot and a half long; may be four or five inches deep; may be four or five inches wide. Upon this testimony the trial judge submitted to the jury the question whether there was a dangerous place there and whether the commissioner ought to have known it, charging them that if there was a rut only four or five or six inches deep, it was not such a rtit as called for repair by the highway commissioner. If, however, the rut was from twenty to twenty-two inches deep, the jury might say whether this was a dangerous place, and if, as a dangerous- place, it had remained there a sufficient length of time so that the commissioner ought to have known it, then the plaintiff, if free from negligence, had a cause of action. P. C. Dugan, for the appellant. J. H. Clute, for the respondent. [MAJORITY — Smith, J. :] Smith, J. : The test of defendant’s liability is the negligence of the highway commissioner, which, under the law before it was amended, would have subjected him to liability for this injury. This hole or rut, as far as appears from the evidence, was caused by the natural wear of wagon wheels into the soft clay soil in the spring of the year. While some of the questions put by counsel seem to imply that there was a contributing cause in its relation to the sluiceway under the róad, no such inference is legitimate from the evidence in the case. I doubt if upon country roads a rut caused mainly by the ordinary travel of wagon wheels in the wet weather has ever been deemed a necessary subject of repair. Those defects cure themselves with the advance of the season, and such conditions the farmer learns to anticipate in the use of the highway at that time of the year. The testimony of the plaintiff’s brother that this hole or rut was from twenty to twenty-two inches deep, should not, in our judgment,, be made a basis of a recovery as against the testimony of all of the other witnesses sworn either for the plaintiff or defendant. If the hole or rut were only ten inches deep, which is the greatest depth sworn to by any other witness, we are clearly of the opinion that it was not such a defect as called for repair by the highway commissioner. Aside from this consideration, however, there is another objection which is fatal to this recovery. The plaintiff’s brother swore that upon the day after the _ in jury this hole was from twenty to twenty-two inches deep. He further swears: “ I knew there had been one there * * * between two and three weeks at least.” He nowhere swears that the hole with that depth had existed for that length of time. The testimony of one other witness is that it gradually grew in depth and was deeper the day before the injury than it was three or four days before. While it appears from the other evidence that the rut had existed for about two weeks, there is no evidence whatever that one day prior to this accident a dangerous rut existed, such an one as would give notice to the commissioner of a defective highway. By common experience we know that those ruts are apt to increase by wear from day to day during the wet weather. If two weeks prior this rut had been two, four, six or eight inches deep and the commissioner had had actual knowledge thereof, he • would hardly be called upon to make repairs. To give to the commissioner such constructive notice as would make the defendant liable in an action of this nature, the hole of rut must have existed in a dangerous condition for such a length of time that he, in the exercise of reasonable care, might have ascertained its condition. Of this fact the case is barren of proof, and the trial court was not authorized under the evidence to submit to the jury the question of constructive notice. This was not one of the through highways. It was simply a crossway in a town which had from 115 to 200 miles of highway. The commissioner had passed over this road in the November and February before this accident. If he had been so negligent as to create a liability against this town, he is himself liable over to the town for the judgment recovered. Upon this evidence we should deem it unjust to impose a personal liability upon this highway commissioner, and, therefore, unjust to impose a liability upon this defendant. The judgment and order should, therefore, be reversed and a new trial granted, with costs to abide the event. All concurred. Judgment and order reversed on the law and the facts and new trial granted, with costs to appellant to abide event.