The defendants offered to prove that the condition of the highway in question was worse in some other places, and especially those out of the village bounds, than it was at the place complained of. There is no ground upon which the admission of such evidence can be reasonably urged. If the defendants were more negligent elsewhere, it furnishes no reason for not holding them liable here. And if other authorities or public officers were more negligent than the defendants, it can not exempt the defendants from responsibility. Nor does it in any legitimate way tend to prove the plaintiff’s negligence. On the contrary, if in traveling over the two miles of highway, more exposed and dangerous than that where the injury occurred, the plaintiff passed with entire safety, the fair inference is that he must have exercised great caution. The' question of the plaintiff's negligence *390can not thus be determined by comparison, but by the facts occurring at the time of the accident. The evidence was properly rejected.
The only other points raised in the case may be ranged under the two general and ordinary heads, to wit: 1. Wore the defendants guilty of negligence or breach of duty producing the casualty. 2. Did the plaintiff’s negligence contribute to the result. I will consider the latter question first.
The question of the plaintiff’s negligence was fairly and properly submitted to the jury. It was a question for the jury. There was no such clear and decided evidence of his want of care as would have justified the court in nonsuiting him upon that ground. It is unnecessary to remark upon the evidence in detail, in this particular. I think no one can read it without being satisfied that it was one of those cases where in regard to the facts themselves and the proper inferences to be drawn from them in respect to this question, it was emphatically the province of the jury to decide.
The question of the defendants’ negligence or breach of duty depends upon other considerations.
1. Was the building, of a railing or guard at the place of the accident, if necessary for the safety of the public and of travelers, a’ duty resting upon the defendants, under their general obligation to keep highways in repair ?
2. Was such a duty absolute and complete under all circumstances, or did it depend upon the fact of the defendants being in funds for such purpose, or upon their judgment and discretion, or other reasons ?
3. Did the defendants in fact have such funds on hand, if that circumstance was necessary to be shown P
4. Do the facts of this particular case establish negligence or breach of duty on the part of the defendants so as to make them liable, or to make their liability a proper question to be submitted to the jury ?
1. By section 3, of chapter 115, of the laws of 1857, “ The village of Bondout shall be a separate highway district, *391and the trustees of said village shall have the powers and discharge all the duties of commissioners of highways therein.” By 1 R. S. 502, § T, it is made the duty of commissioners of highways “ to give directions for the repairing of the roads and bridges within their respective towns,” and “to cause the highways and the bridges which are or may be erected over streams intersecting highways, to be kept in repair.”
It would appear to be sufficiently obvious that the duty of keeping a bridge or a highway in repair extended not merely to the floor of the bridge or the road bed of a highway, but to proper guards or railing on their sides or borders, where necessary for the safety or protection of the public; but the point has been repeatedly adjudicated. (Palmer v. The Inhabitants of Andover, 2 Cush. 600. Hayden v. Inhabitants of Attleborough, 7 Gray, 338. Norris v. Litchfield, 35 N. H. Rep. 271.)
2. The question has been much discussed how far commissioners of highways are liable for the non-repair of highways within their jurisdiction, and it has been generally held that they are not so, if they have not the funds that purpose and are incapable of supplying themselves by law with such funds. (Bartlett v. Crozier, 17 John. 439. People v. Commissioners of Hudson, 7 Wend. 477. People v. Adsit, 2 Hill, 619. Barker v. Loomis, 6 id. 463. Smith v. Wright, 27 Barb. 621.) As a question of pleading, the cases are not decisive whether an averment of the possession of funds should be made in the complaint, leaving it to the defendants to set up the want of them in the answer, or not. Adsit v. Brady, (4 Hill, 630,) strongly intimates that the general allegation of neglect and breach of duty is sufficient, and that the commissioners are presumed to have the means of performing a duty with which the statute charges them; while Smith v. Wright, (27 Barb. 621,) holds that the complaint should contain a distinct averment of the possession of the requisite funds to make the repairs, and the want of it makes the complaint demurrable.
*392In the case now under consideration there is no such averment ; and there was no demurrer to the complaint. The answer is a general denial and does- .not set up the want of sufficient funds. And all the proof in the case was taken without objection, so far as this question is concerned, and nothing appears in the case in regard to it, except that on the motion for a nonsuit one of the grounds was that there is no proof that the defendants had any funds with which to make repairs or put up a guard; which ground the court overruled. .
But whatever may be the case in regard to commissioners of highways in towns, a different and more stringent rule appears to have been applied to corporations and the trustees of a village. In this case the defendants are “ the trustees of the village of Rondout,” and such .is the .corporate name of the village. “The inhabitants residing therein (in the village of Rondout) shall henceforth be a body corporate and politic by the name of the trustees of the village of Rondout.” (Laws of 1849, oh. 199, § 1.) It was therefore the corporation of the village of Rondout which was sued in this case.
Weet v. The Trustees of the Village of Brockport is a case in the- supreme court, reported in a note in 16 N. Y. Rep. 161. The opinion in that case concludes as follows, (pp. 172, 173:) “It follows from the preceding reasoning that if we regard the injury to the plaintiff as the result of mere neglect to keep the highways of the village in repair, the defendants would be responsible in this action, for such neglect, upon the ground that their acceptance of the franchise granted by their charter raised an implied undertaking or contract on their part to perform that duty, which upon the principles referred to, enures to the benefit of every individual interested in such performance. But it is unnecessary to revert to this doctrine to establish the responsibility of the defendants in this cause, for the reason that the injury to the plaintiff was not the result of a mere nonfeasance on the *393part of the defendants, hut was produced by their construction of the platform in question in such a manner as to constitute it a jmblic nuisance.” At page 170 the same judge says: “ It seems to have been the opinion of Justice Beardsley in the case of Wilson v. The Mayor of New York, (1 Nenio, 596,) and of Sandford, J. in Hutson v. The same, (5 Sandf. Rep. 289,) that municipal corporations are not liable in a civil suit for a mere neglect of their duty to repair highways ; that they are subject to no greater responsibility in this respect than commissioners of highways in towns. But it has been shown that where individuals or corporations assume obligations or duties for a consideration received from the public, they are liable for a neglect of those duties to any private citizen who may have been injured by such neglect. This doctrine, was applied in the case of Mayor of Lynn v. Turner, (Cowp. 86,) and Henley v. Mayor of Lyme Regis, (5 Bing. 91; 13 Barn. & Adol. 77; 1 Bing. N. C. 222, S. C. in error,) to municipal corporations.”
It will be seen, on comparison, that the charter of the village of Brockport is not essentially different in this particular from the charter of the village of Bondout. (Laws of 1852, p. 672. 16 N. Y. Rep. 169. Laws of 1857, p. 243.) The same doctrine is essentially supported by the following cases : People v. Corporation of Albany, 11 Wend. 539; The Mayor &c. v. Furze, 3 Hill, 612; The Rochester White Lead Co. v. City of Rochester, 3 Comst. 463; Lloyd v. The Mayor &c. of N Y. 1 Seld. 369.
I am aware that Justice Marvin, in Peck v. The Village of Batavia, (32 Barb. 634,) and Cole v. The Village of Medina, (27 id. 218,) undertakes to some extent to dispute the doctrine, and to curtail the application of the case of Weet v. The Trustees of the village of Brockport, but the principle and reasoning of the latter case was expressly adopted by the court of appeals in Hickok v. The Trustees of the village of Plattsburgh, (16 N. Y. Rep. 161,) and Con*394rad v. The Tnistees of the village of Ithaca, (Id. 158.) In the latter case the court say, in reference to the case of Hickok, (p. 165,) “ The decision of the court was that in the case of a village where the trustees were made commissioners of highways, the corporation was liable for their negligence.” (Also p. 172,) “ Considering the building of the bridge, a corporate act performed by its agents and servants, the defendants are responsible, upon settled principles illustrated by several adjudged cases. (The Mayor of N. Y. v. Furze, 3 Hill, 612. Rochester White Lead Co. v. City of Rochester, 3 Comst. 464. Hutson v. The Mayor of N. Y. 5 Seld. 163.”) See also Storrs v. The City of Utica, (17 N. Y. Rep. 104.)
I am of opinion, therefore, upon the authority of these cases, that if the road was out of repair and the defendants neglected to repair it, an absolute obligation and liability rested on the defendants in regard thereto.
3. But I am also of opinion that under the evidence in this case, and assuming that the defendants were not liable without the possession of adequate funds to make repairs, there is evidence in the case from which the possession of such funds might be inferred. It appears that the needed repairs might have been effected for about the sum of $50, and that the defendants had been provided by tax with $2800, and had expended from $2000 to $3000. It could not therefore be said to have been conclusively shown that the defendants were without funds.
It is further urged, that inasmuch as the statute provided that the money raised by assessment for highway labor was “ to be expended under the direction of the board of trustees in making and keeping in repair the highways, bridges and roads within the corporation in such manner as they judge to be the most beneficial to the public,” therefore this expenditure was confided to the judicial discretion of the trustees, which could'not be reviewed by any other tribunal. But to this there are several answers.
*395[Albany General Term, September 7, 1863.(1.) The obligation to repair, and the liability for neglect to repair, is absolute upon the corporation.
(2.) The provision in question establishes the rule of liability between the trustees in their official capacity and as agents of the corporation, and their principals, and not between the latter and the public or parties aggrieved.
(3.) The money to which the provision applies is that raised by assessments for highway labor, and not that derived from other sources, of which there may be a considerable amount.
(4.) The defendants can not be excused from making an indispensable repair, on the pretense of judicial irresponsibility at least without conclusively showing that all the funds in their hands had been applied in the- regular discharge of official duty. Complete irresponsbility would enable the trustees to decline making any repairs whatever, under a pretended exercise of their discretion. This could never have been intended.
4. Whether th.e place where the accident occurred required a guard or barrier in order to the safety and protection of travelers ; and whether the defendants were guilty of actual negligence in not constructing such guard or barrier, were questions which were fairly submitted to the jury by the presiding judge, and which it was their province to determine. There was enough to go to the jury upon those questions, and their finding thereon, or on the amount of damages, can not be disturbed.
A new trial must be denied, and there must be judgment for the plaintiff, on the verdict.'
Miller, J. concurred.
Gould, J. concurred in the result, but held the obligation to repair, to be absolute without reference to the possession of funds.
Ifew trial denied.
Gould, Mogebaom and Miller, Justices.]