Wendell v. Mayor of Troy , 1862 N.Y. App. Div. LEXIS 219 ( 1862 )

By the Court,

Hogeboom. J.

I think the present state of adjudication in regard to the liability of municipal corporations and public officers, for injuries occurring by negligence, authorizes us to lay down the following propositions;

1. Where municipal corporations or individuals are charged, as in the case of streets or highways, with the duty of keejúng them in repair and exercising a general oversight in regard to their condition and safety, they or the body" they represent are liable for all injuries happening by reason of their negligence. (Mayor of New York v. Furze, 3 Hill, 612. Weet v. Trustees of Brockport, 16 N. Y. Rep. 163, n. People v. Corporation of Albany, 11 Wend. 539. Rochester White Lead Co. v. City of Rochester, 3 Comst. 463. Lloyd v. Mayor of New York, 1 Selden, 369),

2. They are bound to keep the streets and highways in a proper state of repair and free from all obstructions or defects in the road bed which vigilance and care can detect and remove ; and this whether or not the work or repairs are being done by a contractor under them, the negligence of whose servants causes the injury complained of. (Storrs v. City of Utica, 17 N. Y. Rep. 105, 106, 108, 109. Hutson v. Mayor of New York, 5 Seld. 163. Hickok v. Village of Plattsburgh, 16 N. Y. Rep. 161, n.)

3. They may under certain circumstances be temporarily exempt from liability where repairs or other work and labor in the street are performed by contractors for the work, and the injury complained of occurs in the progress of the work, by carelessness or negligence on the part of the servants of those contractors. (Pack v. Mayor of New York, 4 Seld. 222. Kelly v. Mayor of New York, 1 Kern. 432. Blake v. Ferris, 1 Selden, 48. Norton v. Wiswall, 26 Barb. 618.)

4. In regard to streets and highways their use is designed, for the public, for purposes of passage, travel and locomotion; and the use of them by an individual simply for his own convenience and accommodation, unaccompanied with the public uses just mentioned, as for drains, sewers, vaults or cess-pools, is unauthorized and essentially a nuisance, and makes the party building or maintaining such nuisance liable for all damages sustained in consequence of the improper appropriation of the street or highway to such mere personal use. (Congreve v. Smith, 18 N. Y. Rep. 79. Dygert v. Schenck, 23 Wend. 446. City of Buffalo v. Holloway, 3 Selden, 493. Congreve v. Morgan, 5 Duer, 496.)

5. The public body, represented by such corporation or officer, is also, in such case, responsible for injuries thus occasioned, 'because it was illegal and improper and a breach of duty in them to allow a public thoroughfare to be thus diverted to a mere private use. (Conrad v. Trustees of Ithaca, 16 N. Y. Rep. 158, 161 and note. Hart v. City of Brooklyn, 36 Barb. 227. Bailey v. Mayor of Neto York, 3 Hill, 531. 2 Denio, 433. Congreve v. Morgan, 5 Duer, 495. Mayor of Albany v. Cunliff, 2 Comst. 174. Ellis v. Sheffield Gas Consuming Co., 22 Eng. Law and Eq. Rep. 198. Nelson v. Vermont and Canada R. R. Co., 26 Verm. R. 717. Hutson v. Mayor of New York, 5 Selden, 163.)

6. I think this liability is absolute and complete, notwithstanding the work may have been done with care and the structure erected in an apparently proper manner, because its erection was in itself unlawful, and no amount of care or labor bestowed could sanction such illegal appropriation of the street or highway. (Conrad v. Trustees of Ithaca, 16 N. Y. Rep. 158, 161, and note.)

7. If such work is for any reason tolerated by the public authorities, it is their duty to exercise a supervision over its construction and condition, and it is negligence and a breach of duty in them, to omit to exercise such supervision. (Storrs v. City of Utica, 17 N. Y. Rep. 108-9. Hickok v. Village of Plattsburgh, 16 id. 161, and cases last cited.)

8. If such supervision is exercised, but not to such an extent as is demanded by proper and reasonable care, nor so as to secure the safety of the traveling public, the corporation or person required to exercise such supervision is guilty of negligence, and the injuries arising from such lack of efficient supervision and care are injuries for which they are responsible. (Storrs v. City of Utica, 17 N. Y. Rep. 108-9. Hickok v. Village of Plattsburgh, 16 id. 161.)

9. If the injury results from some inherent defect or vice in the unauthorized structure itself, or the mode of constructing it, so as not to be apparent even to a careful external observer, the public or public authorities are nevertheless liable; 1. Because -the structure was under any circumstances unauthorized ; and 2. Because the exercise of competent care and vigilance would have avoided such defects in the structure or mode of construction as would result in injury to the traveling public. (Storrs v. City of Utica, 17 N. Y. Rep. 106. Conrad v. Trustees of Ithaca, 16 id. 158. Congreve v. Morgan, 5 Duer, 495. Hart v. City of Brooklyn, 36 Barb. 227.)

The rules thus enunciated, and which I think, all of them, rest on well considered adjudications or sound principles, dispose of all the more material questions presented in the ■ present case, and I believe cover all the essential matters contained in the charge or refusals to charge on the part of the court. They embrace all those which rest upon the idea of a supposed defect in the construction of the drain or sewer not ' obvious or open to external examination; because the erection was unlawful, inasmuch as competent care would have cured or obviated the defect, and the omission to bestow such pare was of itself an act of negligence. It is not like the case of a hidden or unavoidable imperfection or defect in the earth itself, in its natural state below the surface, in the perform^ anee of labor .and repairs necessary for the public benefit,', against which competent care and 'supervision could not provide ; because in such case the work done was proper in itself, the use to which the highway was subjected was a lawful use, and the defect or imperfection such as could not have been anticipated, and against, which the exercise of all reasonable care and circumspection was insufficient to protect the public.

[Albany General Term, December 1, 1862.

Hogeboom, Peckham and Miller, Justices.]

" These rules also embrace the case of a neglect to provide a competent person to supervise the work.

The lack of funds was also, I think, no defense, as there was no proof that such lack existed in point of fact; and as the defendants were provided with abundant resources and remedies to supply themselves with the funds necessary for the accomplishment of the work.

■The evidence as to the proper mode of constructing and laying down drains, by persons expert in that business, was, I think, properly received.

The medical testimony as to the injuries likely to be produced under a given state of facts was, I think, properly admitted. The witness stated the precise facts on which he based his opinion, and the court did not withdraw from the jury the right or liberty to consider whether these facts were established by the testimony. (People v. Lake, 12 N. York Rep. 358. Goodrich v. The People, 3 Parker, 622.)

The motion for a new trial upon the evidence is not urged on the appeal, and none of the exceptions appear to me to be well taken.

I am of opinion that the order denying a new trial, and also the judgment of the circuit court, should be affirmed.