LANDON, J.:

This injury occurred because the well-worn harness upon one of the plaintiff's horses finally broke under the strain of the haul of the heavy load up the grade of the road. The verdict of the jury acquits the plaintiff of contributory negligence. We do not think the evidence supports the verdict in this respect.

In the cases where a recovery has been sustained when the inability of the plaintiff to control his horses is one of the concurring causes of his injury, we can see that, however much other persons were at fault, the plaintiff was not. Here the plaintiff well knew that the two iron links which held the harness together were half worn through; to continue their use in hauling such heavy loads up hill was a kind of "tempting of providence." In Phillips v. N.Y. Central Hudson River R.R. Co. ( 127 N.Y. 657) the rein which broke was not defective. In Putnam v. N.Y.C. H.R.R.R. Co. (47 Hun, 439) the defendant's negligence was the cause of the rein breaking. The burden was upon the plaintiff to show that he was free from negligence in using such a harness. His evidence in this respect simply shows his long indifference to a constantly increasing and obvious risk.

The verdict convicts the defendant of negligence because the commissioner of highways had not placed a fender or guard along the brook side of the otherwise excellent road. Reasonable care does not exact extra precaution against the carelessness of others. Before this accident, the need of a fender had not been suggested to the commissioner by any experience. The plaintiff had long used the road and it had never occurred to him to suggest that any fender was needed. Its safety seemed to be assured by its width, straight course, level condition from side to side, and good bed. The absence of a barrier where one is needed is a defect, but the need is shown by the conditions, and sometimes by experience, as in Bryant v. Town of Randolph ( 133 N.Y. 70), where the embankment was high and curving. In Maxim v. Town of Champion (50 Hun, 88) the curve in the road misled the plaintiff off the road at night, as was also the case in Ivory v. Town of Deerpark ( 116 N.Y. 476). In Reid v. Town of Ripley (14 N Y Supp. 124) the road was steep, narrow, and covered with loose stones upon which plaintiff's horse stumbled and fell over the edge of the road. Morrell v. Peck ( 88 N.Y. 398) was the case of a bridge without any railing. The absence of a fender was not considered proof of negligence in Lane v. Town of Hancock ( 142 N.Y. 510); Glasier v. Town of Hebron (131 id. 447); Hubbell v. City of Yonkers (104 id. 434); Monk v. Town of New Utrecht (Id. 552); Waller v. Town of Hebron ( 5 App. Div. 577).

But, assuming that the jury could find that the absence of a barrier was a defect, the further burden rested upon the plaintiff to show that its absence was the result of the negligence of the commissioner of highways. ( Waller v. Town of Hebron, supra; Monk v. Town of New Utrecht, supra.)

However it may be in cities and incorporated villages, in towns there may be defects in the highways, and very serious ones, without any negligence upon the part of the commissioner of highways. The town of Walton had made an appropriation of $600 for the maintenance for the year 1894 of the 280 miles of roads, the 80 bridges, and 100 sluices in the town. The money system (Highway Law, chap. 568, Laws of 1890, § 49 et seq.) was in operation in that town, and thus the commissioner had to cover the whole field with this sum of money. As a prudent man, he would not be expected to waste it upon fenders in places where travelers, by taking reasonable care, would not need them. There is no evidence tending to show that the commissioner did not, under all the circumstances, use reasonable care and diligence in the discharge of his duty. He testified that it had never occurred to him, before the accident to the plaintiff, that the highway, at the place of the accident, needed a fender. A mistake in judgment after such careful consideration as the circumstances require is not negligence. You must show that negligence leads to the mistake in judgment. Even if the commissioner had concluded that a fender would be a good thing at this place, he had to determine between the urgency of this and other calls upon his limited resources. If he had had $6,000, instead of $600 a year, to apply to the highways, doubtless his views as to needs would have expanded. As it was, he had to consider and determine how he could best use the little he had. ( Monk v. Town of New Utrecht, supra.)

The judgment and order should be reversed, a new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and a new trial granted, costs to abide the event.