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 *201upon 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.