Farley v. Mayor of New York , 72 N.Y. St. Rep. 264 ( 1895 )

McAdam, J.

The plaintiff was a fireman attached to Engine Company Ro. 20, being driver of the hose cart which formed part of the company’s outfit. On Hovember 20,1892, ■ upon the receipt at company’s quarters of an alarm of fire about half-past one a. m., he got into his seat and drove towards the fire as fast as ■ he could, going through Marion street into Broome, east towards the Bowery. It was dark and he could see nothing in front of him.- While driving through Broome street the hose cart struck a truck stored upon the street, and the plaintiff was thrown to -the ground, ■sustaining injuries from which lie may never recover. He sued the municipality and recovered a verdict for $7,500, which, under the circumstances, is not excessive. .

The action was brought not on the theory of nuisance, but because, of the defendant’s alleged negligence in allowing the truck to remain in the driveway after the expiration of a time sufficient to imply notice to it of its presence there.

Assuming that the' city would be liable to a person using the highway in a prudent manner, the question remains whether ■ the plaintiff, an employee of one of the departments of the municipality, is' entitled to recover under the circumstances.

A fireman’s calling is hazardous, and when he enters the •service it must be assumed that he takes upon -himself all the •attendant risks.. Quickness in getting to fires is the prime ‘■essential of effective service, and the dangers incident thereto risks of the employment. That the position is one of danger is manifest from section 519 of the Consolidation Act, which - provides in part as follows : ■“ * * '* _ In case of "total permanent disability, caused in" or induced by the actual performance of the duties of his position, .* * * the amount of ¡annual pension to be allowed shall be' one-half of the annual ■compensation allowed such officer or member as salary at the date of his retirement from the service,” etc. The plaintiff availed, himself of this provision, and was retired on half pay, viz., $600 a year. If a private individual, were injured by the negligence complained of he would not be cared for in this manner, and the damages recoverable would be his only compensation.

The Consolidation Act (§ 1932) prohibits driving in the city at a greater rate of speed than five miles an hour. If a private individual were injured while violating this statute, and the violation in any manner contributed to the injury, no recovery could be had; and if, as in this case, the street was dark and he could see nothing in front of him, the violation would certainly be calculated to contribute to the. accident. It is difficult to conceive any logical reason why the same result should not be reached here.

The next question is whether the statute is binding on the fire department. In Morse v. Sweenie, 15 Brad. 486, the Appellate Court of Illinois held that an ordinance of the city of Chicago as to immoderate driving was as bin ding .upon the fire department as upon drivers of ordinary vehicles, and that the law did not recognize any privileged class, such as members of the fire o;- police department of the city, as possessing rights so superior to those of other citizens of the state as to exempt the former from the exercise of proper prudence and care in the use of the streets. The question there arose in an action against a fire marshal who, while driving to a fire, negligently ran into the plaintiff’s team; but the underlying principle decided reaches this contention.

If the rule were other than that laid down in the case cited,, it would follow that the speed at which a driver drives his horses should be left to that care and caution which' the exigencies of the occasion require. Thus, prudence would dictate that in a narrow street or in a dark or crowffed thoroughfare he should not go with that rapidity warranted in a clear thoroughfare in broad daylight. If. the plaintiff disregarded such considerations he would be plainly negligent, and if the imprudence would not be sufficient to prevent recovery of damages by him on the theory of contributory negligence, it would be because it is one of the risks incident to his employment compensated for by section 519 of the Consolidation Act, supra.

If the action had been for creating or maintaining a nuisance in the public, highway, of which the plaintiff " was unaware, and he had without fault on his part run the horses into a pitfall which themimicipality had failed to guard, and he had not accepted compensation for the injury, a different question ■ might arise. ’ . .

It follows that the defendant’s motion to dismiss the" complaint should, have been granted, and the exception to the refusal presents error for'which the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the .event.

Freedman, J., concurs.

Judgment and Order reversed .and new trial ordered, with costs to appellant to abide event. •