McMahon v. . Mayor , 33 N.Y. 642 ( 1865 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This was not a case to take from the jury. The evidence, that was but slightly conflicting, tended to establish a strong case of neglect and default on the part of the defendants, by which the lad met a horrible death. Directly opposite the entrance to his father's residence was a deep well, that had formerly been in use, some six feet wide at its mouth, and extending several feet under the sidewalk. About eight years before the accident, resulting in his death, this well had been closed, and the sidewalk constructed partly over its mouth. Instead of being filled up, it was covered with hemlock boards or planks, on which earth or flagging were placed. These boards or planks decaying, a part of the curbstone and gutter, and an outer piece of the flagging fell in, when the proper city officials were notified of the defect. The place was visited by the officer having charge of the reparation of sidewalks, and having set men at the work of filling up the well, by dumping dirt from carts into it, he soon left the laborers to continue the work themselves. Nothing was done to secure the remainder of the flagging from falling and precipitating persons into the well, nor was there any warning given that it was dangerous to stand or pass over that part of the sidewalk near the stoop of the house in which the plaintiff's family resided, or to hinder them passing over the walk where it was apparently firm, but really insecure. Whilst the laborers were engaged in dumping dirt from their carts into the well, the sidewalk fell in up to the steps of the stoop of the plaintiff's house. This was probably occasioned by the stone walls of the well, which had been laid up roughly, falling in. The workmen had been admonished of the danger of their falling in, from the careless way they were attempting to close up the hole, but did not heed the admonition. Indeed, so indifferent were the workmen to their own safety, and that of the men, women and children congregated from curiosity, near the open space, that when the caving in of the sidewalk occurred, one of them and two children fell into the pit. The deceased was precipitated into the pit, and buried beneath the flagstone and earth that fell into the pit with him. It is obvious, from the evidence, that he had just stepped on the walk near the stoop of his father's house when the caving in occurred, and was not in the crowd that pressed near that part of the walk which had previously fallen in. But an instant, before the occurrence, he stood on the front stoop of the house in conversation with a woman, whose rooms were in the basement. She left to go to her apartments (the boy following, as she supposed, to accompany her), and had just got off the sidewalk, and partly down the basement steps, when the "crash," as she described it, came. The sidewalk fell in up to the lower step of the front stoop, and, doubtless, at the instant the boy stepped on it.

In view of these facts, it cannot be pretended that the defendants were free from negligence, and that the case, upon this question, should have been withheld from the jury. It was culpable negligence on the part of the defendants, to construct and maintain the sidewalk of a thronged street of their city, over the mouth of a deep well five or six feet in width, without securely and permanently closing it. If they chose not to fill up the well, it was, at least, their duty to see that its walls and covering were sufficient, and that the sidewalk would continue secure. Moreover, their agents and servants had timely notice of the defect in the street, and set about remedying it in a way, and under circumstances, that seem to have contributed to, if not producing, the fatal result. When one piece of the flagging fell in, nothing was done to secure the rest of it from falling. No steps were taken to prevent travelers from passing over it whilst the work of filling up the breach was going on. No warning was given that it was dangerous for persons to stand or pass upon that part of the walk near the plaintiff's stoop. Yet, that was without support, and fell in finally. It was a reasonable presumption, and one which the jury might well have drawn from the evidence, that the direct cause of the accident was the falling in of the walls of the well, and that the negligent and incautious way of repairing the defect, caused those walls to fall in. It is hardly supposable, from the proof, that the caving in of the walk which precipitated the deceased into the well, with the flagging on which he stepped, resulted from the lateral pressure of the crowd collected to witness the operations of the defendants' workmen; but, rather, as one or more of the witnesses testified, from the manner of doing the work. Manifestly, it was not a case for a nonsuit, on the ground that the defendants were not chargeable with any negligence.

The charge of the judge is not complained of; the defendants' counsel contenting himself with requests, that were refused, to charge two propositions, which will be briefly noticed. The first was, "that if the jury believed that the negligence of either the father or mother of the deceased contributed, in the slightest degree, to his death, the defendants were entitled to a verdict." This specific instruction was rightly refused. There was no evidence of any negligence on the part of the father or mother, to warrant the submission of the question to the jury; and this is answer enough. But neglect of either, which may have slightly contributed to the accident to the deceased, was not necessarily a defense to the action. The deceased was not an infant, incapable of taking proper care of himself in the street. He was eleven years old, and an unusually intelligent, active and manly youth. Had he survived the injury, and been without fault himself, he could have recovered, notwithstanding his father or mother were guilty of negligence; and so may his administrator, such injury causing his death.

The other proposition was "that the defendants were entitled to a verdict, inasmuch as there could not be a recovery by the representative of an infant, unless there be a widow and next of kin of him surviving." This was not pressed or made a point on the argument. It is clearly untenable. To entitle the plaintiff to recover under the statute, it is not indispensable that the deceased should leave him surviving "a widow and next of kin." (Laws of 1847, chap. 450; id. 1849, chap. 256; Oldfield v. TheNew York Harlem Railroad Company, 14 N.Y., 310; Quin v.Moore, 15 id., 432; Tilley v. The Hudson River RailroadCompany, 24 id., 471.)

The judgment of the Common Pleas should be affirmed.

DENIO, Ch. J., and DAVIS, BROWN and PORTER, JJ., concurred; CAMPBELL, DAVIES and POTTER, JJ., were for reversal.

Judgment affirmed.