Opinion
December Term, 1896.
Halliday Denton, for the appellant.
Smith Dickinson, for the respondent.
This action was brought to recover damages against the town of Enfield resulting from the alleged negligence of its highway commissioner, in permitting a hole to remain in one of the highways of said town, in consequence of which the plaintiff was injured.
One of the witnesses for the plaintiff testified that the hole was eight inches deep, but there was a decided preponderance of evidence that its depth was only three or four inches, that it was saucer or basin like in its shape, and several feet in length.
After a careful consideration of the testimony, we are of the opinion that, under the doctrine laid down in Waller v. Town of Hebron ( 5 App. Div. 577); Lane v. Town of Hancock ( 142 N.Y. 510), and Beltz v. City of Yonkers (148 id 67), the court below erred in denying a motion for a nonsuit made by the defendant at the close of the evidence.
The cases cited hold that an action cannot be sustained against a municipal corporation or a town on account of an accident occurring by reason of some slight defect in a highway from which danger was not reasonably to be expected, and which, according to common experience, was not liable to happen.
The highway commissioner of the town of Enfield was not chargeable with negligence, under the above-cited authorities, in failing to repair the slight depression in the street at the place where the plaintiff was injured. As said in Lane v. Town of Hancock ( supra, p. 521), "The limit of duty on the part of a town 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."
We conclude that the judgment and order should be reversed, and a new trial granted, costs to abide the event.
All concurred.
Judgment and order reversed and a new trial granted, costs to abide the event.