the rear end of the building is within eight feet of the track. In approaching the tracks from the south this building somewhat obscures the view of the track west of it to the iron bridge. A number of dwelling houses obstruct a clear view of the track west of that point.

As the deceased approached the railroad tracks about five o'clock, P. M., there was a locomotive and two passenger cars on the Batavia track, just west of Main street, so that the rear end. was as far west of Main street as the west side of the switchhouse. The effect was to obstruct the view of the deceased, as the evidence tends to show, until he got very near the Batavia track

There was also a large ice-wagon drawn by two horses standing near the Batavia track, and eight or ten feet south of it. The evidence tends to show that the Batavia engine was making considerable noise, blowing off steam which passed over Main street, thus somewhat obscuring the view. It, also, appears that when the flagman notified the iceman of the approach of the train, his wagon was between him and the cutter.

At the time above stated, the defendant's train, known as the New York Express, crossed the highway going eastward, where it struck and killed the deceased. The above was the situation at the time of the accident.

This action is brought by the widow of the deceased, under the statute, to recover damages for the benefit of the next of kin of her husband. The action was tried in February, 1889, before Justice Macomber and a jury. The trial resulted in a verdict of $5,000 for the plaintiff.

At the close of the plaintiff's evidence, the defendant moved for a non-suit, claiming that no negligence was proved on its part; also, that the plaintiff failed to show want of negligence on the part of the deceased which contributed to the injury. The motion was denied. The defendant's central contention is confined to the last proposition.

There was evidence tending to show negligence on the part of the defendant in omitting either to blow the whistle or ring the bell up to the time of the accident; also, that the train was running at a high rate of speed. There were other circumstances proved tending to show negligence.

The trial justice was undoubtedly right in submitting that question to the jury. Thompson v. N. Y. C. & H. R. R. R. Co., 110 N. Y., 636; 16 N. Y. State Rep., 869.

As to the question of contributory negligence, the case is nearer the border.

The defendant claims that the deceased, who was familiar with the crossing, deliberately drove in front of the approaching train, neither looking, listening or heeding the voice or warning of the flagman. The evidence on the part of the plaintiff tends to show that he looked carefully, and was upon the track before he saw or knew of the approach of the train. The obstructions surrounding the place of the accident are also urged in support of N. Y. STATE REP., VOL. XXXIII. 68

the plaintiff's contention. It is claimed that the deceased did not see or hear the flagman until it was too late to save himself.

Martha Bennett, who rode with him, testified, among other things, "I saw him look both ways; I did not see any train coming; my hearing and eye-sight is good; I did not hear any bell or whistle of the train; I did not see anything of Kinsilla, the flagman."

At another place she testified: "Didn't hear Kinsilla say anything; did not hear any noises as we approached the crossing. She also testified that she did not notice that the deceased heard any noise, or that his attention was attracted by any.

The iceman, Robert Calvert, testified, among other things, speaking of the deceased: "His horses must have been on the Central track at the time the flagman shouted." It is true that at another place this witness testified that he and Kinsilla were face to face, and shouted; but that notwithstanding his efforts, the deceased drove right upon the Peanut track.

Walmsley testified that he did not see any flagman, and enquired where he was. Parkhurst testified, among other things, that the deceased could not see the flagman until he passed the ice team, and that although he (the witness) was near, he did not hear the flagman shout.

Some other circumstances appear which the plaintiff claims strengthen her testimony on this branch of the case.

Where there is any evidence, direct or inferential, of care or caution on the part of the person injured, the question as to contributory negligence is for the jury. Greany v. Long Island Railroad Co., 101 N. Y., 419; Weil v. D. D., E. B. & B. R. R. Co., 119 id., 147-153; 28 N.Y. State Rep., 944; Dirkett v. Knickerbocker Ice Co., 110 id., 506; 18 N. Y. State Rep., 130; Kunz v. City of Troy, 104 id., 344; 5 N. Y. State Rep., 642; Stackus v. N. Y. C. & II. R. R. R. Co., 79 id., 464.

In Parsons v. N. Y. C. & II. R. R. R. Co., 113 N. Y., 355, 364; 22 N. Y. State Rep., 697, the judge delivering the opinion says: "This rule must, in all cases except those marked by gross and inexcusable negligence, render the question involved one of fact for the jury."

It is true that there was evidence given by the defendant tending to weaken or overthrow the force and cogency of that on behalf of the plaintiff; but applying the doctrine of the above cases to the one at bar, it is very clear that the question of contributory negligence was properly submitted to the jury. It has been strenuously urged that the rule has no application to the facts of this case. But sound common sense, applied to all the evidence, clearly shows that under the rules now firmly established the question of contributory negligence was one for the jury. In fact, it can hardly be argued with any plausibility that the conduct of the deceased was "marked by gross and inexcusable negligence." The trial justice was, therefore, right in submitting the question to the jury.

The charge was full and clear, and quite as favorable to the defendant as the law requires. No errors prejudicial to the defendant appear in the case.

The judgment and order should be affirmed. Judgment reversed and a new trial granted, with costs to abide the event.

EDWARD FAY, Resp't, v. THE TOWN OF LINDLEY, App'lt.

(Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) HIGHWAYS-NEGLIGENCE.

Plaintiff was injured while driving upon a highway of defendant, by reason of his wagon slipping from the road into the bed of a creek at a place where there were no fenders or guards. The evidence tended to show that the road sloped towards the creek and was icy; that the whole way had been protected by guards, but that a year before some had been carried away by a freshet; that the highway commissioner knew this, and had funds to make repairs; that there was nothing at the entrance of the road, which was excavated in the rocks, to indicate its dangerous character, and that, after entering, it was impossible to turn. Held, that a verdict in favor of plaintiff was warranted by the evidence.

APPEAL from an order denying a new trial, and from a judg ment upon a verdict in a case tried at the Steuben circuit, in April, 1889.

A. S. Kendall, for app'lt; D. M. Darrin, for resp't.

CORLETT, J.-On the 14th day of March, 1887, the plaintiff resided in Tuscarora, in the town of Lindley, Steuben county. On that day, with two teams loaded with hay, the plaintiff driving one and his brother following, he was proceeding to Painted Post for the purpose of marketing his loads. The plaintiff's brother, Charles Fay, drove the last team.

At that time, and before and afterwards, Marcus Stowell was supervisor of the town of Lindley, John Starner was highway commissioner, and R. B. Hill pathmaster. A portion of the highway on which the plaintiff and his brother, with their teams, had need to travel to reach their destination, was built by excavations in the rocks on the south side of Clendenning creek, which runs through a narrow rocky defile in the mountains. The roadbed was built on the south side of the creek, extending 269 yards; was from eight to ten feet in width, and four or five feet above the water in the creek. At that time the west edge of the road. bed was protected on the creek side by logs and fenders for a distance of 147 rods; then for a distance of 87 yards there were no fenders; after that there were twenty-five yards of fenders, and then ten yards there were no fenders. The road was originally protected by fenders its entire length.

In January, 1886, a flood in the creek took away some of the fenders. In the winter season ice and snow ordinarily accumulated in the road bed, and it is liable to be icy, which was the case in the winter of 1886 and 1887. The rock on the side opposite the creek was shaley and high, and with a crow bar could be easily broken. At the time in question the ditch on the upper side of the road was filled with rubbish, and there was something of a slope in the direction of the creek from the side next the rocks. The road at the point in question was known as "The Narrows." The road had been frozen and icy

most of the time during the winter, but shortly before the day in question a thaw occurred, and the night before, the waters produced by the flood had frozen so that the road bed was slippery and dangerous.

The evidence tended to show that at the point where the plaintiff entered the highway in the Narrows there was nothing to indicate the dangerous condition of the road, and that when a point was reached disclosing the true situation, it was impossible for him to turn; that his wagon commenced slipping in the direc tion of the creek, and that with the utmost efforts on his part he failed to prevent it going over into the creek, which inflicted some injury upon the wagon, and much upon the plaintiff. His brother was behind him. The same thing happened to his wagon, but with less injury. Other troubles of the same character happened to other people driving along the road about the same time. This road was called a dug-way or pass, and before January, 1886, fenders were maintained on its edge next the creek for its entire length. The supervisor of the town in January, 1887, drove along this point, found it icy, and the man riding with him kept his foot out to prevent slewing off. The evidence tended to show that proper repairs to make the road reasonably safe at the point where the accident occurred would cost from $5.00 to $12.00. The plaintiff had traveled this road two years before in the summer time, and found it in good condition.

The evidence tended to show that at the time in question he supposed it to be all right. The evidence also tended to show that John Starner, the highway commissioner, in June, 1886, made an inspection of the Narrows, and found that there were places in which there were no fenders. He made a further inspection in November, 1886, when he found the same defects. He made no repairs, and caused no new fenders to be erected. He was reelected commissioner in February, 1887, and had funds to commence the new term to the amount of about fifty dollars. He made no application at the town meeting for funds. The evidence also tended to show that with a trifling amount of labor the road between the mountain and creek could be so repaired that there would be no slope; also, that there were no fenders at the place of the accident.

The trial resulted in a verdict of $500 for the plaintiff. A motion for a new trial on the minutes was made and denied; judgment was entered, and the defendant appealed to this court.

To show negligence on the part of the commissioner, the plaintiff's contention on the trial was that the road should have been made level between the mountain and the creek; that the ditch on the mountain side should have been kept open; that fenders should have been constructed and kept up on the creek side; also that the commissioner had full knowledge of the defects, which he obtained in his inspection in the summer of 1886, and in the fall of the same year; that he entirely neg'ected his duty in the above particulars, and that he had funds to make the repairs. The plaintiff also insisted that he had a right to travel upon the Narrows, and that, until it was too late to escape, he had no notice of danger.

The defendant denied all the plaintiff's claims, and insisted that he was guilty of negligence; that the danger was the result of a sudden thaw, and that with reasonable prudence on his part no accident would have happened. The commissioner also claimed that the Narrows and their dangers were apparent, and that under the circumstances the plaintiff should not have ventured to travel the highway at that time.

There was no controversy as to the place in question being a public highway. The jury found the controverted questions in favor of the plaintiff. The evidence warranted such finding.

Towns were not liable for accidents on the highway until the passage of chapter 700 of the Laws of 1881, by which it was enacted that towns should be liable for "any damages to person or property by reason of defective highways or bridges in such town in cases in which the commissioners of highways of said towns are now by law liable therefor, instead of such commissioners of high

ways.

This action was brought against the town, and the plaintiff's right to recover depends upon the liability of the commissioner except for the above act.

The general rule is, that dangerous places in an highway should be protected by fenders, guards or barriers. Maxim v. Town of Champion, 23 N. Y. State Rep., 949; Ivory v. Deerpark, 27 id., 643; Jewhurst v. Syracuse, 103 N. Y., 303; 13 N. Y. State Rep., 623 Kennedy v. Mayor, 73 N. Y., 365; Farman v. Ellington, 10 N. Y. State Rep., 840-845; Rhines v. Royalton, 11 id., 231, 232; Warren v. Clement, 24 Hun. 472.

The law requires that the commissioner of highways should exercise active oversight and diligence to ascertain the condition of the road. Farman v. Ellington, 10 N. Y. State Rep., 845.

He is also liable for not enforcing his authority over the overSee case last cited.

seer.

Pom

The question of contributory negligence was one of fact. frey v. Saratoga Spgs., 104 N. Y., 459; 5 N. Y. State Rep., 802; Remer v. L. I. R.. R. Co., 15 id., 884; Nash v. N. Y. C. R. R. Co., 14 id., 532.

Ordinarily a traveler has a right to assume, in the absence of visible obstructions, that the highway is safe. Bidwell v. Town of Murray, 40 Hun, 195; Weed v. Ballston Spa, 76 N. Y., 329; McGuire v. Spence, 91 id., 303.

The charge of the trial justice properly submitted the case to the jury, and none of the exceptions were well taken.

The judgment and order must be affirmed.
DWIGHT, P. J., and MACOMBER, J., concur.

BENJAMIN DECKER, Resp't, v. G. CLINTON GARDNER, Rec'r, App'lt.

(Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) RECEIVER-ACTION FOR TORT COMMITTED BEFORE HIS APPOINTMENT.

An action may be maintained against the receiver of a corporation for a tort committed by the corporation before his appointment.