The plaintiff was the owner of an automobile truck which was damaged while being driven over a country highway in the defendant town. The proof shows that it was being driven at about five miles an hour; that the highway was an unimproved road laid upon clay soil; that the road was rough and rutty; that the wheels of the truck were traveling in ruts made by wagons and other vehicles; that suddenly one of the forward wheels dropped into a hole or depression; that the hole was sufficiently deep to cause the forward axle to strike the ground; that the truck bounced forward; that a rear wheel went into the hole; that the hole was so deep that the wheel did not strike ground; that as a result the rear axle was dropped with violence to the roadway and the truck stopped; that the rear axle at its center then rested on the ground at a point midway between the ruts; that the violent dropping of the truck injured its machinery and other parts in various places. The plaintiff has had a verdict for the damage done to his truck upon the theory that the town superintendent of highways was negligent in not repairing the road at the place of the accident by filling in the hole or rut or otherwise making the road safe for travel.
It is not disputed that the so-called hole was in fact a rut which had been expanded in width, length and depth by the wheels of heavily-loaded vehicles which had passed through the same during the wet season in the fall of the year. The witnesses for the plaintiff said that the hole or rut was three feet long and two feet wide. The witnesses Francis Shanley and James Shanley said that the hole was two feet deep. Both of them agreed, however, that they did not measure its depth, and that they could not see the bottom of the hole because it was filled with water. They merely reasoned to their conclusion from the fact that the wheel did not strike ground at the bottom of the hole. The distance between the hub and the outer surface of the wheel was less than eighteen inches. From the center of the axle there projected downwards for about six inches a portion of the housing of the differential. It was upon the housing that the rear end of the truck rested when the wheel *235lost trackage. The testimony of these witnesses, therefore, proves no greater depth for the hole than approximately twelve inches. The witness Smodell said that he did not know how deep the hole was, but thought it was “ about a foot and a half or something like that.” The witness. Gilgallon said that he could not swear to the depth of the hole, but “ should think a foot or a foot and a half.” Another witness by the same name said that he did not know, but should judge “ a foot or a foot and a half.” No other witnesses for the plaintiff gave proof upon the subject, so that his case closed with no positive evidence that the depth of the hole was greater than twelve inches. On the other hand, as many as five witnesses for the defendant, two of whom actually measured the hole, stated its depth to have been not greater than eight inches.
The highway in question was a back road ordinarily very little traveled. The defendant town, which embraces a territory almost wholly rural, has more than 100 miles of highway, more than 50 bridges, and more than 100 culverts. The highways are almost exclusively laid upon heavy clay soil, which is the natural soil of the town. The accident in question occurred in the month of December, and the hole or rut in question had first appeared in the month of November. The fact that the hole was filled with water shows that the usual heavy fall rains had occurred in the town.It requires but little imagination to visualize the probable condition at the time of substantially all the town roadways. The combination of clay surfaces, heavy rains and traveling vehicles inevitably makes holes and ruts show up in all highways. This is a natural condition which cannot be prevented and to my mind cannot reasonably be cured. It does not seem to me that a town superintendent of highways, having in charge 100 miles of highway, laid upon clay, is open to the charge of negligence because he fails to eliminate all the ruts which come in the rainy season, even ruts, such as this, of a depth of from eight to twelve inches. I think that the case of Osterhout v. Town of Bethlehem (55 App. Div. 198) justifies the conclusion that the plaintiff had no cause of action.
I favor a reversal and a dismissal of the complaint.
Van Kirk, J., concurs.
Judgment and order affirmed, with costs.