The evidence compels the conclusion that the oiling of the Southern Boulevard, where the macadam leaves the asphalt, and around the curve, ■ with its sloping surface, made the road dangerous for automobile travel. The accidents happening at the place early in the evening render it unnecessary to discuss that part of the case. The oil was thick and heavy; the current of the testimony tends to show that it was a quarter of an inch or more in depth and that it was impossible to steer an automobile around the curve without its skidding down the incline.
The jury could have found, and evidently did find, that the proper practice is to oil a macadam road with No. 4 or No. 6 oil, the No. 4 being a light oil and the No. 6 much heavier. When the light oil is used the oil company has a machine which, under great pressure, forces it into the macadam, if the surface is not too hard, and it is then unnecessary to top-dress the surface, but where the heavier oil is used, or the macadam is hard, a top-dressing is required. With a light oil the street is oiled for its whole width at once, but with the heavier oil it is found necessary to oil one-half of the width, barricading against it, and, after some time, to oil the other half, moving the barricade to that side.
The city had arranged with the oil company that it was to oil about a quarter of a mile of this macadam. The road was prepared for the work. On account of war conditions the oil company could not furnish No. 4 or No. 6 oil, and it was agreed that “ tank bottom ” was to be used. It is significant that no witness was produced by either defendant to to tell what “ tank bottom ” is. The only witness offered *758by defendants is the city official who made the contract and had charge of the boulevard, and his testimony is unsatisfactory and unconvincing. In general words, he tells how the oil was applied and speaks of its thickness, and then admits that he knew nothing about it; did not know whether it was put on by machine or how and did not know what “ tank bottom ” is, never having used it before. Evidently he made no inquiry upon the subject. Expecting the work to begin Monday or Tuesday, he went to the road Monday morning and found that it was not started; he again went Tuesday morning, with a like result, and paid no further attention to it. But sometime Tuesday the oil company, as expected, began the work. It oiled about one hundred feet of the road, in length, for sixteen of the eighteen feet of the macadam in width, and at night the road was left in its unfinished condition, without any barrier or lights until about ten o’clock, after the accident, when the city official sent a man to the road with a lantern to remain during the night to warn automobiles.
It is not entirely clear how the oil was applied or whether the quality of the oil alone caused the dangerous condition. The fact, however, remains that very heavy oil was used and necessarily it was applied too thick. The only witness produced by the city states that the machine can spread about an eighteenth of an inch in thickness, but apparently it can be spread to a much greater depth if desired. Common experience shows that the condition described by the witnesses does not exist where proper oil is used. The oil company knew the condition in which it was leaving the road, and must have known that it was a negligent act, especially as there was no indication of barriers or lights being provided for the public protection. Upon leaving the work for the night, it gave the city no notice of the existing condition. The city was derelict in its duty to the public in providing for putting “ tank bottom ” on this road without any specifications as to the way and manner in which it was to be done and with no knowledge as to what “ tank bottom ” is and without doing any act to protect the public. The work was expected to begin Tuesday, and it was a very easy matter to call up the oil company and find just what hour it would *759begin the work. The words “ tank bottom ” probably conveyed to the minds of the jury that it was the settlings in the bottom of the tank, and heavy thick oil, and it naturally would take that view in the absence of any evidence from the parties who knew what it was. “ ‘ The duty of the city to keep its streets in safe condition for public travel is absolute, and it is bound to exercise a reasonable diligence and care to accomplish that end, and in cases like the present where it has employed a contractor to do work involving excavation on its streets it is not absolved from its duty and responsibility.’ ” (Deming v. Terminal Railway of Buffalo, 169 N. Y. 1, 9; Storrs v. City of Utica, 17 id. 104.)
It is urged that it was error to submit to the jury the question whether the oil was a proper material for use. All of the rehable evidence tended to show that it was an improper material to use in the manner in which it was used.
Appellants contend that it was error to permit evidence that the top-dressing was put on the next morning. Concededly, in an action for negligence arising from a failure to repair a structure or a road, it would be improper to show that it was repaired after the accident, as evidence that the road was not in proper condition. In this case the oiling of the road had not been completed at any place, either in length or width, and the oiling made the road dangerous and no barriers or lights were put up to warn the public. The city witness, by giving his loose opinion in general terms, attempted to give the impression that it was not necessary to top-dress this road. As we have seen, his examination showed that he knew nothing about it. The fact that he sent a man to the road with a lantern to warn automobiles was called out by the defendants and not by the plaintiff. It is a fair question on the evidence whether or not it was the plan to put on top-dressing. The defendants' witness swears he was not notified when the work was to be done. He understood the work was to begin Monday or Tuesday; it was not started on Monday; he, therefore, must have believed it was to begin on Tuesday. The mere fact that it was not progressing Tuesday morning, when he was upon the ground, gave him no warrant to believe that it would not be entered upon that day. The want of notice, therefore, *760was not very prejudicial when he understood it was to start that day. He concedes that the next morning after the accident he found that the macadam was so hard at the curve and other places that the oil had not penetrated, and the road was slippery. Nevertheless he top-dressed those places and all of the road that was oiled with this material. His evidence as to the condition of the road when he first saw it the morning after the accident confirms the plaintiff’s view that the oil remained on the surface of the road, making it very slippery. Clearly that presented a case where topdressing, according to his theory, was necessary, and the fact that top-dressing was done did not bear any heavier upon the defendants than the fact that the situation actually made top-dressing necessary. His evidence, manner and interest justified the jury in accepting such of his testimony as was against his interest and disregarding such parts as were in his interest. If the city was negligent, it was the result of his action or inaction. It is not probable that, without knowing what "tank bottom” was, he had come to the conclusion that it was not necessary to top-dress it. He says he had no top-dressing on the ground; evidently not. When needed, the top-dressing would be brought from the piles and scattered upon the road. There was no occasion to bring it to the roadside in advance and handle it twice. This evidence as to top-dressing was competent in view of all the circumstances and the fact that the work had not been finished; it bears upon what was the original plan and what was deemed necessary at the time the contract was made and upon the credibility of the witness. If there is any question about it, the facts make it so plain that top-dressing was necessary that the error could not prejudice the defendant. Without this evidence the negligence of both defendants was overwhelming. It is evident that both defendants knew that no oil, especially " tank bottom,” would penetrate a hard macadam surface. Before using it, without any provision for top-dressing or guarding the place, it was their duty to examine the surface, and if they had examined it they would have ascertained that the “ tank bottom ” applied to it would make the road dangerous. It is evident, from the condition of the oil as sworn to by all of the witnesses, that top-dressing *761was necessary, and that wa's probably the understanding of the parties. The witness neglected his duty in permitting the use of this oil and in not protecting the public, and he is the only one who is willing to take the stand and attempt to excuse his acts.
It is urged that it was error to refuse to charge that the company was not an independent contractor. When a company does work upon a public street, which necessarily makes it dangerous to travel over, and leaves it unprotected, knowing that no arrangements have been made to protect the public, it is quite immaterial whether it was a separate contractor or what its relation to the work was. It created the nuisance and is responsible for it.
As we have seen, the negligence of the city caused the dangerous condition of the street. The question of notice, therefore, need not be considered. (Minton v. City of Syracuse, 172 App. Div. 39.)
The verdict is just; the oil company deemed it for its interest to make no explanation of “ tank bottom ” or the method of its application, and both defendants are relying upon technicalities to leave upon the plaintiff a burden which they should bear. I favor an affirmance.
Judgment reversed and new trial granted, with costs to the appellants to abide the event.