The evidence in this case disclosed that on the 16th day of January, 1921, the above-named claimant and his wife wrere proceeding over a state highway in his Studebaker six-cylinder touring car from Corning, N. Y., to Ithaca, N. Y. The said highway was at that time being maintained under the patrol system. The state thereby became liable for the damages suffered by any person from defects in said highway. As claimant proceeded upon his journey on the day in question, he came to a point in the said highway about nine miles northwesterly of the village of Horseheads where the surface of the highway was covered with ice. The claimant had no tire chains on his tires to prevent his automobile from skidding and when he saw this ice he did not stop to put any on although he had them in his car.
The evidence does not disclose that there had been any accident at this place previously nor that the highway authorities had received any notice that this ice in question was considered dangerous or constituted any defect in the highway. The ice had been in the road for two or three weeks and there had been much travel over it and to an automobile equipped with chains to prevent skidding we must conclude it was perfectly safe. The claimant saw the ice and he had the chains to put on his wheels but either saw nothing that looked dangerous to him or deliberately took the chance of crossing the ice in safety without chains. The act of endeavoring to run his automobile down a hill covered with ice we think constitutes contributory negligence on his part. He alleges in his claim that the water ran over the highway at this point because the ditch there constructed to take it off was filled with stones and other debris.
This contention is not sustained by the evidence. Mr. Poole, a state engineer, called by the claimant, testified on this subject as follows:
“ By Mr. Kilburn: Q. What was the condition of those ditches in the spring? A. They were practically the same as the way we left them in the fall. Q. They were not obstructed in any way? A. No sir. Q. And they were open? A. Yes sir. Q. And open sufficiently to take care of the water that came down — A. Yes, sir. Q. [Cont.] On each side of that unimproved highway that came down the hill? A. Yes, sir. Q. And what was the *399condition of the culvert itself? A. It was clean and clear. Mr. Kilburn: That is all.”
The ditches and the culvert filled up to some extent with ice and snow so that when it thawed a little of the water would ooze out over the road and freeze. Such conditions as this are likely to occur at most any place along a country highway in the winter time. If the state is to be made liable for damages suffered by those who endeavor to drive automobiles without anti-skid chains over ice on country roads in the winter time, it would have to maintain an army of employees to prevent the accumulation of such ice. After every storm the ditches and culverts would have to be cleaned out and the ice removed from the highway. This would be an unreasonable burden to place upon the. state. If the state had permitted these ditches and this culvert to be filled up with debris such as stones, dirt, grass, brush, etc., that might create a different situation, but that is not this case. The most the courts have ever held in reference to the maintenance of country highways is that the highway authorities must maintain the highways in a reasonably safe condition for the travel to which it is subject and that that is all that is practicable.
In the case of Flansburg v. Town of Eldridge, 205 N. Y. 423, 428, Judge Collin of the Court of Appeals in speaking of the defendant's liability for an accident on one of its highways said: “ In this case a question is: Does the evidence show or tend to show that an omission of the commissioners, inconsistent with and contrary to ordinary and reasonable foresight, apprehension and diligence, caused the injuries of the plaintiff? If it does not, the exception of the defendant to the denial of its motion for the non-suit is well taken.” And again at page 429: “ The commissioners of highways were not negligent in omitting to maintain a guard rail or fence upon the north boundary of the roadway. It is a matter of common intelligence, as well as of law, that a reasonably safe condition of a highway for the travel to which it is subject is all that is practicable.”
In the case at bar there is no proof of any prior accident at this place and no proof of any complaint which reached the authorities responsible for the condition of this highway. As bearing on that proposition we quote from Judge Hiscock in the case of Butler v. Village of Oxford, 186 N. Y. 444, 448, as follows: “ While of course the absence of any prior accident at this point would not be conclusive evidence that the construction was a proper one it still is of much importance in establishing that proposition and in relieving the trustees from any imputation of negligence because they did not change it. They had a right to take into account and be influenced *400by the experience of the general public in using this walk without any mishap.”
In the case of Lane v. Town of Hancock, 142 N. Y. 510, an accident was caused by a bob sleigh slipping on an ice-covered water bar, extending across the road, and there being no guard logs at the side of the road the sleigh went over the embankment and a person 1 hereon was killed. The court in that case said (at p. 521): “ No accident had ever occurred on this road before, and there was nothing to indicate that such an accident as this would be likely to occur. There was such a combination of circumstances, all concurring at the time to produce it, that no reasonable man could impute negligence to the commissioners because they did not foresee it in the absent guard or fender on the edge of the road. * * *
“ The limit of duty on the part of a town with regard to the condition of its highways falls far short of making them absolutely safe under all circumstances even for those who use them properly. * * * The remarks of Judge Peckham in the case of Hubbell v. City of Yonkers, 104 N. Y. 434, 439, apply with great force to the facts disclosed by this record. That which never happened before, and which in its character is such as not to naturally occur to prudent men to guard against its happening at all, cannot when in the course of years, it does happen, furnish good grounds for a charge of negligence, in not foreseeing its possible happening and guarding against that remote contingency.”
In view of the foregoing decisions of the Court of ..Appeals, we conclude that the facts established in this case do not make out a case for damages against the state. And even though it might be claimed that the case at bar could be distinguished from the cases cited to such an extent as to make the state liable on the facts here established, yet even then we are of the opinion that the claimant in endeavoring to negotiate this ice field without putting on his anti-skid chains was clearly guilty of contributory negligence which would prevent the court from making an award in his favor in any event.
The claim of the claimant must, therefore, be dismissed upon the merits.
Webb, J., concurs; Morschauser, J., dissents, with opinion.