(dissenting). Plaintiffs appeal from an order of the Supreme Court setting aside a verdict rendered by a jury in each of the above-captioned cases, and granting new trials.
The actions were brought in negligence as the result of an accident which occurred January 16, 1938, on a town-maintained dirt road known as the Beech Hill road, in Delaware county. From the evidence it would appear that this road is the usual back-country dirt highway running through portions of the Catskills. At the point of the accident there was or had been a barrier, consisting of a substantial chestnut timber, on the east shoulder of the road to prevent travelers on the highway from running off the side. There seems to be ample evidence to support the contention of respondent that this guard or barrier was in position at the time of the accident. There was snow on the road and there is testimony that it was icy and slippery.
The truck was driven by Milton Butler, nineteen years of age. It was apparently a poorly equipped model A Ford and not in good mechanical condition. Its tires were smooth and much worn, as appears from the several photographs in evidence, and there is evidence that with all its brakes fully applied any of its wheels could be freely moved by hand. There is also evidence that the spokes in the steering wheel were broken at a point where they joined the steering wheel rim, and that these spokes had been broken prior to the accident. There was no emergency brake whatsoever. This was the truck Milton Butler drove over this road in the winter time with five children seated upon the exposed platform behind the driver’s cab.
The trial justice in setting aside the verdicts held that the case of Roberts v. Town of Eaton (238 N. Y. 420) was controlling, and that to impose upon the town the burden of either constructing substantial barriers at every point of possible danger or paying damages when an accident occurs would be to advance the present measure of liability beyond the rule of ordinary care to the field of insurance *357against accidental injury. (Lane v. Town of Hancock, 142 N. Y. 510.)
I agree with the learned trial justice. This accident could not reasonably have been anticipated. In Carner v. Town of East Greenbush (225 App. Div. 609) this court held that the State in constructing main highways should be required at places of unusual danger to locate barriers to stop and hold vehicles proceeding at a reasonable rate of speed, but that a “ town is not charged with that duty in relation to its common dirt roads.” This barrier was not required as a matter of law, and, as the court found, the evidence does not show that it would have prevented the accident even though it had been on the shoulder of the road. (Carner v. Town of East Greenbush, supra; Rigby v. Town of Gerry, 209 App. Div. 391; Best v. State of New York, 203 id. 339; affd., 236 N. Y. 662.) The duty imposed upon the town related only to those dangers which might reasonably be anticipated. Certainly, the town superintendent of highways could not reasonably anticipate that an antiquated motor vehicle, with smooth tires and without adequate brakes would be driven over this.icy roadway and across the road and shoulder and down the side hill. (Dorrer v. Town of Callicoon, 183 App. Div. 186.) The town had no notice, actual or constructive, of any claimed defects in the highway, and certainly snow and icy conditions on a mountain road do not constitute negligence. (Hooker v. Town of Hanover, 247 App. Div. 623.)
The order appealed from should be affirmed.
Foster, J., concurs.
Order reversed on the law and facts, with fifty dollars costs and disbursements, and verdicts reinstated.