delivered the opinion of the court,
This action was brought by the plaintiff below to recover damages for the loss of a mare belonging to him, in the possession of Ellis Hoagland, caused, as was alleged, by the unsafe condition of the road over which she was being driven. Hoagland, with this mare and another horse of his own, hitched to a loaded wagon, was returning from New Albany to Eorksville on the 24th of February 1872. In descending a mountain four or five miles from Forksville, along a dug-way, the wagon slid off the road, dragging the horses with it, and the mare of the plaintiff was killed either by the fall or by choking to death before she was extricated. The road was ten or twelve feet wide, and the upper side was from six to ten inches higher than the lower, with a uniform descending inclination from the bank to the edge on the lower side. At this point there were no guard-logs along the edge for a distance of thirty or forty feet. There was a spring on the upper side with a sluice-way across, partially stopped up, and the water flowed over the highway and froze on its surface. Rain had fallen the day before the accident, the weather had become suddenly cold and ice had formed to an extent to make" travelling dangerous. For ten days previously, ho ay ever, there was evidence that ice had been accumulating, and it was alleged that the duty of the supervisors to keep the highway in a safe condition had been wholly neglected.
On the trial the defendant’s counsel offered' in evidence “ a draft of the roads in the vicinity of where the accident happened, to be *233followed by evidence that Hoagland knew of other roads than the main road taken by him, and that he had heard of the condition of the road which he travelled.” The court admitted the evidence to show Hoagland’s knowledge of the condition of the road he took, and rejected that relating to the existence of other roads. The defendant subsequently proposed “ to prove that at the time of the accident Hoagland knew of the road leading from Michael Corcoran’s to Millview, by way of Molyneux, and that he knew it was a safe road.” This evidence also was rejected. When this second offer wras made, testimony had been given to show that Hoagland had been informed of the condition of the main road. William Bird had said he “told him he would be apt to go off the road before he got down the hill,” and “that it was so icy it would be dangerous to go down the hill.” And Truman Landon had sworn that he had told Hoagland that the hill was very icy. This evidence might not have proved to be very significant if it had been submitted to the jury in connection with that which the court rejected. It may be, too, that the taking of another road, even if perfectly safe, would have involved so much of delay, distance or other inconvenience as to justify Hoagland in keeping on the main highway. But these were questions for the jury to decide. A person who knows a defect on a highway and voluntarily undertakes to test it when it could be avoided, cannot recover against the municipal authorities for losses incurred through such defect: Whart. on Neg., sect. 440. Thus, if it appear that there is danger' in treading on a piece of ice and the plaintiff voluntarily and unnecessarily undertakes to walk over it, when he could plainly see it and easily avoid it, and falls and breaks a limb, he is precluded from recovery : Durkin v. The City of Troy, 61 Barb. 437. In going from Forksville to New Albany in the morning, Hoagland had taken what the witnesses called the Campbellville road. Having found that icy, he took in returning the road on which the accident happened. Of the condition of the latter at the time, therefore, he had no personal knowledge. But if he had warning that it was dangerous, and knew that by reasonable precaution the danger could be avoided, prudence required that such precaution should be taken. The evidence should have been received, and the effect of it, in its connection with the testimony of Bird and Landon, it would have been for the jury to consider and decide.
The general charge was unobjectionable, and there was no error in any of the answers that were given to the points, in view of the evidence admitted, to require a reversal of the judgment. Without other facts, the court would not have been justified in instructing the jury, in answer to the defendant’s fifth point, that, upon the statements of Bird and Landon, the neglect of Hoagland “to take the safest road” was contributory negligence, when evidence of the existence of any other road than the main highway had been *234excluded, and it had been shown that the supervisors had left that highway open. Nor would those statements have warranted the instruction asked in the seventh point, that the information he had received made it his duty “to take more than ordinary care.” He was bound to use all the precautions against danger which a cautious and prudent man would use in the circumstances by which he was surrounded. In the course of the answers to the points the jury were in effect so charged.
Judgment reversed and venire facias de novo awarded.