I think the judgment of nonsuit was right. The test of the safety of a highway cannot be its capacity to guide and carry safely a loaded, uncontrolled wagon running by gravity backward down a steep hill. This accident is of such unusual character that it cannot be imputed as negligence'on the part of the highway commissioners not to have anticipated it. Mor is there any evidence from which the jury had a right to find that had there been at the place of the accident any obstacle, bunker or barrier, the accident would not have happened. It is only against the accidents which are likely to happen that the commissioners are called upon to make provision.'
Smith, J., concurred.
Judgment reversed on the law and the facts and new trial granted, with costs to appellant to abide event.