The claimant alleges in his claim that he was injured on January 16, 1921, by reason of certain defects existing in a highway known as the Horseheads-Cayuga state highway, being state highway No. 5432-A, and being a part of route 39-A of the state highways of the state of New York, *401which highway runs generally in a northeasterly direction from Horseheads, N. Y., to Ithaca, N. Y., by way of Sullivanville and the village of Newfield. This highway was under the patrol system at the time.
The claimant was driving an automobile over this road without chains on the wheels. Near the point of the accident this highway was intercepted by a common dirt road and the highway sloped at the point of the accident descending in the direction that the claimant was traveling and at the foot of the hill there was a culvert under the highway to carry the water under the road coming from an open ditch. The state had built, running parallel with its highway, a ditch or open drain to take the water from the top of the hill to the culvert at the bottom of the hill and also built this drain or ditch across the dirt road to carry the water from the dirt road along its highway and so on down to the culvert. The state had permitted the culvert, and also the ditch leading thereto, to become clogged with debris and the water instead of running down in the ditch to the culvert ran across the highway at about the middle of the hill, where the dirt road intercepted, and covered the greater portion of the highway with water which froze and became ice and had been in that condition for a considerable length of time before the accident.
The state was under an obligation to keep its ditch, culvert and drain open and its failure to do so caused the water flowing over the highway to freeze and form ice upon the highway. The other part of the entire highway was clear of ice.
Where power is conferred on public officers or a municipal coiporation to make improvements, such as streets, sewers, etc., and keep them in repair, the duty to make them is quasi judicial or discretionary, involving a determination as to their necessity, requisite capacity, location, etc., and for a failure to exercise this power or an erroneous estimate of the public needs, no civil action can be maintained. But when the discretion has been exercised and the street or improvement made, the duty of keeping it in repair is ministerial, and for neglect to perform such a duty an action by the party injured will lie. Urquhart v. City of Ogdensburg, 91 N. Y. 67; Hines v. City of Lockport, 50 id. 236, 238; Mills v. City of Brooklyn, 32 id. 489.
The negligent act of the state in the case at bar was its failure to keep its ditches, drains and culverts free from debris so as to prevent them from clogging up and causing a large quantity of water to overflow the highway, which froze and caused a large field of ice to form. Walker v. Town of Pittsfield, 198 N. Y. 559; *402Pinkham v. Topsfield, 104 Mass. 78; Adams v. Chicopee, 147 id. 440; Fitzgerald v. Woburn, 109 id. 204.
We do not think that the state would be liable for conditions produced by the elements alone and the fact that it was slippery and icy at the place of the accident would not of itself justify a finding of negligence, but where there is some other cause for the formation of the ice in this particular locality, like in this case, caused by the failure of the state to do its duty in keeping the ditches, drains and culvert open, we think that the state was negligent. Todd v. City of Troy, 61 N. Y. 506; Pinkham v. Topsfield, supra.
In Walker v. Town of Pittsfield, supra, the court said: “ There was evidence with respect to the condition of this highway for several months prior to the accident, from which the jurors might find neglect on the part of the commissioner of highways in failing to keep the sluiceway at this point in good order and that such neglect caused a more serious defect in the highway in the winter following, than would have occurred otherwise. If the defect complained of could be attributable, solely, to those conditions which usually supervene in the winter season, as the result of atmospheric changes and of the effect of travel upon accumulations of snow and ice, we should be disinclined to hold that the commissioner of highways was chargeable with culpable neglect.” In this case the sluiceway caused water to overflow which froze and made the highway very dangerous and the town was held liable for negligence.
The claimant’s car was going down this hill when he struck the field of ice in the highway, skidded and turned over and fell in a ravine. There was no barrier, or guard, at the point where the car tumbled over. In this fall the claimant was severely injured in his person and his car was damaged.
The state, by section 176 of the Highway Law, as it was at the time of the accident, assumed liability for defects in its highway where they were maintained under the patrol system. We think that this was such a defect in the highway as to obligate the state to repair or remedy the same. The condition above referred to had existed at this point for a long time. The state, by the Highway Law, having assumed liability for defects in its highway where they are maintained under the patrol system, undoubtedly intended to assume the same liability as existed against towns prior to the enactment of this law and this liability should be measured by the same rules of law that existed holding towns hable for defects in its highways prior to the enactment of section 176 of the Highway Law. The state failed to open the culvert at the foot of the hill and failed to keep open this drain and ditch and this failure on the *403part of the state caused the water to flow over the highway and freeze and a large field of ice to form. Under these circumstances, the state was negligent and permitted a defect in its highways to exist which caused the accident.
The claimant was not guilty of contributory negligence. He testified that the entire route over which he traveled was free from ice and snow and the road was clear until he came to the place of the accident. His testimony was in part as follows: “ We came down, went down this dip and out onto this ice, and I started to skid onto the ice, unexpectedly as far as I was concerned. You couldn’t see it until you got right on it. And I started to skid, and I turned the car out of the rats the first time. And there was a rut there that a heavy car had made. I don’t know when, but my front wheels struck the first rut, and my hind wheels missed it, and I simply whirled around and backed down, as the pictures will show here that we have. The rear of my car struck on the culvert that goes through there, and we turned completely over and struck bottom side up * *
Where an embankment of snow and ice was perfectly visible; that the plaintiff must have seen it as he passed over it, and that there was a light covering of recent snow over the ice, held, a refusal of the court to charge, as matter of law, that it was negligence for plaintiff, under the circumstances, to attempt to pass over the embankment was not error. Pomfiey v. Village of Saratoga Springs, 104 N. Y. 459.
Where a person traveling upon a highway is, as a general rule, justified in assuming that it is safe; and, where he is injured in consequence of a defect therein, the fact that he had previous knowledge of the existence of the defect, does not per se establish negligence on his part. Weed v. Village of Ballston Spa, 76 N. Y. 329; Richardson v. City of Syracuse, 41 App. Div. 118; Ott v. City of Buffalo, 16 N. Y. Supp. 1; affd., 131 N. Y. 594; Shook v. City of Cohoes, 108 N. Y. 648.
It appeared upon the trial that the claimant in the accident had two ribs broken and suffered considerable pain and was unable to do work for some time. ' He stated in open court that he was willing to accept $200 for his personal injuries and sufferings and it was shown by the evidence, and uncontradicted, that the claimant sustained the sum of $884.52 damage to his automobile.
I think, therefore, that the claimant is entitled to recover the sum of $1,084.52 and should have judgment for that amount.
Judgment accordingly.