Schafer v. Mayor , 42 N.Y.S. 744 ( 1896 )

BARRETT, J.

(dissenting). The defendants claim that the complaint was properly dismissed for the reason that the ground where the accident .occurred was not part of a public street. It appeared, however, that although 127th street between 2d and 1st avenues had not actually been opened, regulated, and graded as required by an act passed as far back as 1881 (chapter 105, Laws 1881), yet the-street between those avenues had for many years prior to the accident been used by the public as an ordinary thoroughfare for vehicles and foot passengers. The street was lined with buildings which were occupied for various purposes. The city had laid water mains-through the street, and had placed hydrants and manholes there, and it was regularly patrolled by the police. Under these circumstances, it was at least for the jury to say whether the use of the-locality as a street was permitted by the city. The rule is that where the city allows land to be used as a street, and holds it out to the public as such, it is bound to exercise the same degree of care as if the street had been formally laid out according to law, and to keep it in reasonably safe condition. Sewell v. City of Cohoes,. 75 N. Y. 45; Phelps v. City of Mankato, 23 Minn. 276; Gallagher v. City of St. Paul, 28 Fed. 305. It was held in Phelps v. City of Mankato—and this case was cited with approval in Sewell v. City of Cohoes—that it is immaterial how a public street became such, whether by formal acceptance and official action of the city, or by acceptance and use by the public, so far as regards the duty of the city to keep it in safe condition. The respondents concede the rule to be as laid down in Sewell v. City of Cohoes, supra, but they insist that it is only applicable where the city has performed some acts with reference to the land which are appropriate to public thoroughfares, such as regulating, grading, lighting, or paving the street, or building gutters, curbs, and sidewalks upon it. But if the city had done these things it would, in effect, by its official action, have opened the street, and there would be no point in invoking the rule to which we have referred. The rule applies where these things have not been done, namely, where the thoroughfare is used by the public without dissent from the city, and where the surroundings indicate an invitation to such use. Here the city clearly suffered the public to treat the land as an ordinary street. True, it did not break down or remove the curbstone which crossed 2d avenue. But it knew that the land was used and occupied as a street, and that for years vehicles were being driven over this very curbstone, into and through the land so occupied as a street. It policed the land as an occupied street. It laid its water mains through it, and placed its hydrants thereon. To all practical intents and purposes it was a regular thoroughfare; and it was certainly competent for the jury to say, upon all the evidence, that it was held out by the city as such a thoroughfare.

The next ground upon which the nonsuit is sought to be upheld is that the placing of the manhole in the street, and its manner of construction, were matters within the discretion of the city authorities, for which the city is not liable. We do not think that the manhole in question was within the rule with regard to quasi judicial duties imposed upon public officers. It was not a part of a system of improvements. The city officials had for years neglected to make these improvements, although required to do so by law. This manhole and the neighboring hydrant were mere preliminaries to the contemplated improvement. The manhole was placed where and as it was with reference to subsequent formal action under the law. It was probably intended ultimately to be on a level with the regularly graded street. In the meantime, however, it was a dangerous obstruction, and the city should either have reduced it to the level of the land or closed the apparent thoroughfare. Such a construction stands upon the same footing as a hydrant or other similar convenience. It should have been properly constructed and properly placed. City officials certainly have no quasi judicial or discretionary authority to place a dangerous and unnecessary obstruction in what is a practical highway, and thus jeopardize the lives of our citizens. Even in the hydrant case of Ring v. City of Cohoes, 77 N. Y. 83, the liability of the city for negligent construction or negligent placing of the hydrant was not questioned. The question of negligence pure and simple was discussed by Judge Earl. He absolved the city, not because the construction was a matter of discretion, but because the hydrant was properly constructed as matter of fact, and was properly placed where it was in the curb. But suppose it had been placed in the middle of the street, and then an accident had occurred; would it not have been treated as a nuisance, or, at least, would there not have been a question of negligence for the jury? “A hydrant,” said Judge Earl, "answers a useful and necessary purpose, and it is required to be placed somewhere in the street; and, when the public authorities determine to place one in the curb, it cannot be said that they have done a negligent act. It is true that, in a city, the whole roadway must generally be kept suitable for travel. But the gutter is not properly for travel. It is made for another purpose.” There was evidence in the present case from which the jury might fairly have found that the manhole in •question was placed at an unnecessary and improper elevation above the surface of the street, and that it was so placed years before, by the city authorities. We think, therefore, that the question of the city’s negligence should properly have been submitted to the jury.

The only other question calling for special consideration is whether the plaintiff made out a case of freedom from contributory negligence upon the part of his intestate. It is contended in this connection that the weight of evidence favors the conclusion that the deceased lost his balance and fell from his seat at the moment when the truck was jolting over the easterly curbstone of 2d avenue. The claim is that the deceased then fell upon the pole of the truck, and that he only fell from the pole to the street when the manhole was reached. This point was not specially taken upon the motion to •dismiss, and was not referred to by the learned trial judge in the reasons assigned for the granting of that motion. We do not, however, deem the point to be crucial. There was certainly some confusion in the testimony of the various witnesses to the occurrence; but upon a full consideration of that testimony we think the question as to the precise moment when the deceased finally fell was fairly for the jury, and that there was no such preponderance against the plaintiff’s theory as would have justified the direction of a verdict for the defendants upon that ground. These observations equally apply to the general question of contributory negligence. All that can be said is that the occurrence happened in the daytime, and that the obstruction might, or might not, have been observed by a careful driver. Even an ordinarily watchful driver might not have kept a special lookout for unusual and exceptional obstructions. We think the jury might here have inferred the absence of contributory negligence from the circumstances disclosed, or they might have inferred contributory negligence. Where two inferences may reasonably be drawn from the testimony of witnesses and the nature •of the accident, the question is for the jury. Chisholm v. State, 141 N. Y. 246, 36 N. E. 184.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.