Tiers v. Mayor of New York , 81 N.Y. Sup. Ct. 452 ( 1893 )

FOLLETT, J.

This action was brought to recover damages for a personal injury caused, it is alleged, by the negligence of the defendant and its agents. Between 8 and 9 o’clock in the evening of May 1, 1891, the plaintiff, accompanied by a gentleman, while driving north in a buggy on the east side of Lenox avenue, between 113th and 114th streets, drove onto a pile of sand, was overturned, and the plaintiff thrown into the street and severely injured. The pile of sand extended from the curb on the east side of the avenue, from 8 to 15 feet, towards the center of the street. There was ' some conflict as to how far the pile of sand extended into the avenue. The plaintiff testified that it extended from 12 to 15 feet, and one witness called in her behalf, who lived near the place of the1 accident, testified that it extended 15 feet into the avenue. One witness called by the defendant testified:

“This pile extended into the street from seven to eight feet. I suppose it might have been from ten to fifteen feet long, stretching along the curb. In my estimation, from two to three feet high.”

Two witnesses who lived near the scene of the accident testified —and they were not contradicted—that this pile of sand had lain in the avenue four or five months. They also testified that they saw the accident; that there was no light on the sand that evening until after the accident, when lights were placed on it. One of these witnesses testified that her attention was called to the absence of the light by the fact that there had been a light there every night before that one. It was also shown by undisputed testimony that no railing or guard was kept around the sand. It does not appear that the defendant ever caused this pile of sand to be lighted or to be guarded, or requested any one to do it, or that any precautions were taken by the defendant or its agents to prevent accidents. It does not appear by whom the lights had been placed on the heap of sand before the accident. Section 324 of the consolidation act provides:

“Sec. 324. It shall be the duty of the commissioners to remove all obstructions now existing, or which may hereafter be placed upon any street or sidewalk, or public ground not inclosed in any public park.”

The obstruction which caused the injury had existed for four or five months before the accident, and the defendant must be deemed to have had knowledge of it. It was bound to exercise reasonable diligence in the care of the street, and if it failed to do this it is liable, whether the act or omission which caused the injury is that of the defendant, or of some third person. Nelson v. Village of Canisteo, 100 N. Y. 89, 2 N. E. 473; Turner v. City of Newburgh, 109 N. Y. 310, 16 N. E. 344; Pettengill v. Oity of Yonkers, 116 N. Y. 558, 22 N. E. 1095.

The defendant cannot escape liability on the ground that the neglect to light or guard the obstruction on the night of the accident was the omission of some person who had previously assumed to place lights on the obstruction. The plaintiff and her companion were driving on the proper side of the street, and there is no evidence that their negligence contributed to the injury. The evidence is sufficient to sustain the verdict that the plaintiff was free from negligence, and that the defendant was guilty in permitting this obstruction to remain in the street unguarded, and so cause the accident. The judgment and order should be affirmed, with costs. All concur.