The dismissal was upon the pleadings and the opening of the counsel for the plaintiff. In such a case the facts stated in the complaint are to be considered, and also such further facts as in the opening are offered to be proved, unless objection to such proof is made on the specific ground that it is not admissible under the pleadings. Clews v. Association, 105 N. Y. 398, 11 N. E. 814; Rector, etc., v. Huntington, 82 Hun, 125, 31 N. Y. Supp. 91.
In the complaint it is alleged, in substance, as follows: On the 9th July, 1895, the plaintiff was traveling in a two-horse wagon, over a highway in the town of Indian Lake, leading from the village of Indian Lake to a small village or hamlet known as Blue Mountain Lake. This highway runs along the east end or side of Blue Mountain Lake, and as the plaintiff passed along at a place where the road runs on the immediate border of the lake, and was there only about 10 feet wide, his horses were frightened by the waters of the lake dashing up over the highway; and they became unmanageable, and plunged off the road, into a swamp on the opposite side. The plaintiff was thrown from his wagon, and received permanent injuries, to his great damage. There was no fault or negligence on plaintiff’s part. The injuries were caused by reason of the defective, insecure, and unsafe condition of the highway at that point, and by reason of the lack of a proper barrier or guard between the road and the lake, which would prevent the waters of the lake from dashing over the road, and frightening the horses of passing travelers. The commissioners of highways of the town at the time of the occurrence of the accident, and for a long time previous thereto, had knowledge that the highway at that point was defective, dangerous, insecure, and unsafe, and had knowledge that there was no barrier or guard at that point to properly protect the road from the waters of the lake dashing upon it; and they carelessly and negligently omitted to erect a barrier or guard, or to make the highway reasonably safe and secure at that point. The possession of funds or authority to procure them is alleged.
In the opening of counsel, it is stated that for about 200 feet the road runs right on the edge of the lake; that it is a corduroy road, made of logs laid side by side with one log on the lake side lengthwise, to act partly as a breakwater; that, as plaintiff got on that 200 feet, a big wave dashed in from the lake, washed up around his horses, and frightened them; that the horse further away from the lake shied off to one side, into a ditch or swamp about five feet wide, between the road and a wire fence, dragging the other horse after him; that the horses commenced plunging, and running, and the wagon went into a hole in the logs, stopped suddenly, and threw plaintiff out.
The counsel also stated:
“We shall prove to you that the road at that time had no barrier, either on the lake side, to keep the water from rushing up over the road when an extra large wave came, and no barrier on the other side, to keep horses on the road *328if they shied off in that way. We shall prove to you that the road was too narrow for safety; that it was a dangerous road, because it was too low, too near the lake; and'that it was' dangerous and unsafe fór a distance of about two hundred feet at that place. * * * We shall prove, that the road commissioners of this town of Indian Lake had notice that this was a dangerous place in the road; that they had known it for a long time; and that they had made some plans to have it fixed and repaired and made safe, but up to this time had not succeeded in doing it. We shall prove that other horses had been frightened at this place, although no serious accident had occurred, and- that it was generally known to be a dangerous place. We shall prove that the road commissioners themselves had horses frightened at that place.”
The following occurred between court and counsel:
“By the Court: Your complaint here is that the horse was frightened, by the wave? Plaintiff’s Counsel: Our complaint is that the horses were frightened by the waves rushing up over the road, from the lake, over the horses’ feet; and as there was no barrier between the road and the lake, and no barrier between the road and the swamp on the other side, and as the road was so narrow, when the horse shied, it shied off the road. By the Court: May not the road commissioner lay a road on the shore of a lake so the waves may wash over it? Plaintiff’s Counsel: Certainly; but he must make his. road so safe that the ordinary passenger can travel along with safety on the road. We claim the road was unsafe. By the Court: The road was safe except for the wave? Plaintiff’s Counsel: And in the other particulars named; there was no barrier on the other side.”
It has been held that a general averment of negligence was sufficient to admit evidence of particular acts. Oldfield v. Railroad Co., 14 N. Y. 310. In that case it is said (page 314):
“The complaint averred that the death Was caused by the negligence and default of the defendants and their agents and servants; this authorized evidence of the defendants’ neglect or misconduct tending to produce the injury, without a more particular statement in the pleading.”
To the same effect is Edgerton v. Railroad .Co., 35 Barb. 389, affirmed in 39 N. Y. 227, where, at page 230, it is said by Judge Grover:
“The complaint contained a general averment that .the injury was received from the negligence of the ¡defendant and its employés, and it is therefore immaterial whether the proof established the particular negligence specified in the complaint, some negligence being shown.”
According to this doctrine, in the present case it was competent to give evidence showing that the commissioners negligently omitted to make the highway at that point reasonably safe, by reason whereof the accident happened, and that the injury was sustained by reason of a defect existing because of the neglect of the commissioners. This would bring the case within the statute imposing the liability on the town. Assuming that the road was safe except for the waves, and for the want of a further barrier, it should not be said, as matter of law, that a further barrier was not necessary. If the condition was such that the road would not be reasonably safe without such* barrier, a duty in regard to it was imposed on the commissioners. Assuming that the wave was the 'primary cause,'for which the commissioners were not responsible, still, if the negligence of the commissioners contributed to the happening of the injury, and it would not have happened without the 'existence of such negligence, then a basis for liability would exist.
It is argued by the defendant that the fault,..if any, was at*329tributable to the original plan of construction. That we cannot here assume. It does not appear when or how the road was originally constructed, or what the condition of the locality was then.
It is also argued that the accident was one not likely to happen, and so the commissioners should not be charged with negligence. Still, it is alleged in the opening that this was a dangerous place; that the commissioners had known it for a long time, and had made plans to have it fixed and repaired and made safe. If this was so, we cannot assume that the accident was so unexpected or unlikely to happen as to relieve the commissioners. As the case stands, the dismissal upon the complaint and opening was, I think, erroneous, and a new trial should be granted.
Judgment reversed, and new trial granted; costs to abide the event.
PARKER, P. J., and PUTNAM, J., concur.