#### James E. Collins, Respondent, *v.*The City of Watervliet, Appellant.

Third Department,

January 6, 1909.

Municipal corporations — negligence — injury on defective highway.

Action against a city to recover for personal'injuries received hy the plaintiff while driving on a highway on the outskirts of the city. The complaint alleged that the injury was caused by an unguarded hole, depression or wash out at the side of the highway, but the evidence did not establish the existence of such defect.

*Held,*that the issue should not have been submitted to the jury and that a judgment for the plaintiff should be reversed.

Appeal by the defendant, The City of Watervliet, 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 1st day of *292October, 1908,. upon, the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made' upon the minutes.

*Albert J. Danaher*[ *John T. McDonough*of counsel], for the appellant.

*Thomas F.*Powers, for the respondent.

Kellogg, J.:

When the city of Watervliet was incorporated in 1896 * a part of the highway in the adjoining town of Colonie was brought within the city limits and became Nineteenth street. Its condition at the time of the accident was substantially the same as when it was a town highway. It was one of the principal approaches to the city, but otherwise was substantially a country road.

At the place of the accident there was a gradual bend or curve in the road. The road followed the course of the creek and was about twelve feet higher than the creek which flowed along its southerly side, and the slope from the road to the creek was grown up with bushes, weeds and grass, and, within the recollection of the witnesses, the condition of this slope and the curve in the road had not changed. The road was from twenty-two to twenty-four feet wide; the traveled part about ten feet wide. The curve or bend in the road at its widest part extended the beaten track a foot and a half or two feet northerly from a straight line, so that if a team, was traveling along the beaten track with the southerly wheel close to the embankment, and failed to turn with the beaten track but continued in a straight line and went outside of the beaten track, that wheel would go over the embankment. Teamsters from time to time had thrown some pieces of brick on the northerly side of the road so that horses with a loaded wagon could get a better foothold in ascending the grade. The southerly side of the beaten track was smooth and in good condition, and the beaten track came, as some of the. witnesses say, within a foot and a half, and as others say, within three feet of the embankment. Pedestrians had made a footpath by walking between the beaten track and the southerly embankment.

*293The plaintiff’s brother-in-law, with whom he was driving along the southerly side of the beaten track, went with the southerly wheel' outside of the beaten track from one and one-half to three feet, and the wheel went over the embankment, the wagon was turned over and the plaintiff’s leg broken, for which the jury have given him a verdict for §5,000. The night was dark, and just befoYe the wagon went off the road they met a lady walking near the center of the beaten track. She saw them when about fifty feet away and turned somewhat to the right to avoid the team, and immediately after the accident occurred. About three hundred feet beyond the place of .the accident., upon the northerly side of the road, was an electric light, which was easily seen by the plaintiff and his brother-in-law as they were approaching it.

The complaint and the plaintiff’s case proceeded upon the theory that plaintiff’s injury was caused by an unguarded hole, depression or washout in the southerly side of the highway which extended into the beaten and ordinarily traveled part of the road and thus rendered it dangerous and unsafe. Some of the witnesses speak of a depression, hole or washout as existing at this place, extending from a foot and a half to three feet into the beaten track of the road, but their cross-examination and the photographs in evidence show clearly that there was no hole, washout or depression in the traveled part of the road, but that the road itself was in good condition and repair and that the witnesses were describing this gradual bend or curve in the road by which the traveled track is turned somewhat to the north. They probably, had in mind that at some time to them unknown the creek below may have washed into this bank and made the curve in the road at this place.

It is clear that if there is actionable negligence upon the part of the defendant, it is in not guarding this part of the road where the curve exists. That question is not now before us, as it has not been tried, and we express no opinion upon it.

The trial judge charged the jury that in order to recover the plaintiff must establish that there was a depression, hole or washout in the highway which extended into the beaten • and ordinarily traveled path, and that if the hole or washout did exist but did not extend into the beaten and ordinarily traveled path, then the defendant is not liable. It is clear that there was no evidence which justified the *294submission of this question to the jury, or which sustains a finding of the jury thereon. The jury have not passed upon the question whether it was negligent to permit this curve to remain unguarded, and the trial court has not passed upon the question whether a failure to guard the curve may be a basis for recovery. It is clear that if there was'a hole, depression or washout extending into the traveled part of the road which caused the injury, that the defend.ant would be liable therefor; - but the evidence demonstrates clearly that no- such condition existed. It appeared that there were other curves in the road, and it is a well-known fact that curves are found in many country roads. We cannot, therefore, say how the jury' would have determined that question if it had been submitted to them. An adoption by the jury of the statement of some of the witnesses that there was a hole, washout or depression at this place extending into the beaten path, is not a determination that this natural curve in the road was such that the city was negligent in not guarding it. The verdict of the jury, therefore, rests upon- a clear misunderstanding of the evidence.

The judgment' and order should, therefore, be reversed and a new . trial granted, with costs to the appellant to abide the event.

AH concurred. ,

Judgment and order reversed and new trial granted, with costs to appellant to' abide event.

*

See Laws of 1896, chap. 905, as amd.— [Rep.