Cassidy v. City of Poughkeepsie , 71 Hun 144 ( 1893 )

PRATT, J.

The trial judge gave this case to the jury upon the simple question of whether the plaintiff had suffered her damages through the neglect of the defendant to discharge its duty to care for the safety of the public streets in respect to that portion of Duane street through an opening in which the plaintiff had fallen. This was a plain issue, upon a sound basis of law, from the determination of which by the jury the defendant is not relieved by the argument and authorities presented by its learned counsel. The sewer basin and its cover were constructed in 1876. Granting that the city was not responsible for the action of the water commissioners, either in the adoption of the plan or the actual building of the works, it by no means follows that it could wholly neglect, for a period of 15 years, to look after the safety of the street so far as it was affected by the structure erected, and remain free from all responsibility. It would seem that the cover or bridge was ñt and adequate for many years, and evidence was given upon the trial to show that its instability had arisen from the ordinary incidents of protracted use. Common prudence dictated that the city, in the exercise of care over its streets, should look after the effects of such use upon a structure quite likely to become dangerous in the course of time; and this duty was equally incumbent where the foothold had been originally constructed by lawful authority, as if it had been the work of trespass or the elements. The trial judge appears to have concurred with the defendant’s counsel in his views of the limitations upon municipal liability applicable to the case. The case rested, and its trial was steadily conducted upon the fundamental ground of the defendant’s liability for its own negligence. The jury, thus guided, found the facts sufficient to make out the plaintiff’s case, and we see no reason why their verdict should be disturbed.

The judgment must be affirmed, with costs.