Jordan v. City of New York

Rumsey, J.:

The action was brought to recover damages for an alleged negligent act of the defendant, causing the death of the plaintiff’s husband and intestate. At the trial, upon the opening of counsel, the complaint was dismissed on the motion of the defendant. A motion for a new trial was denied, and from the judgment entered upon the dismissal of the complaint and the order denying the motion for a new trial this appeal is taken.

In examining the case it must be taken for granted that every fact stated by the plaintiff in his opening would have been susceptible of proof, and the question to be determined is whether, taking all these facts as true, and drawing from them every fair inference which a reasonable man might draw, the facts stated tend to show a cause of action in behalf of the plaintiff against the defendant, so that if the case had been presented to a jury they might fairly have found a verdict in her favor ?

The husband of the plaintiff (because of whose death this' action •is brought) was a truck driver. On the 28th of February, 1898, having laden his truck with a load of scrap iron, he had gone to the premises of the Consolidated Gas Company at Seventeenth street and Eleventh avenue, for the purpose of weighing his load. He entered the premises of the gas company on Thirteenth avenue and drove his truck to the scales. After the weighing was finished, he started to go into the street by a driveway that led out to Eleventh avenue, over the premises of the gas company, and approached the street between two buildings, which extended up to the boundary of the driveway on each side, and out to the sidewalk in front. From the' sidewalk to the curbing of the street the driveway was paved with nobble stones. On the right side, as one went out, there had existed for a long time a pile of paving stones upon the sidewalk which •extended up to the line of the driveway, some few of the stones projecting a few inches over it. On the left side, and in a line with the side of the building which formed the boundary of the driveway, was a hubstone, projecting about eighteen inches above the sidewalk, and firmly set in the street at the end of the driveway, This driveway was a part of the public street, except that ordinarily it would have been part of the sidewalk. It had been used for years as a driveway, and was paved in such way that it could be used for that purpose. It was eight feet and one inch wide, which was the distance between the pile of stone on the south ;side and the hubstone on the north side. The plaintiff’s intestate had driven through this driveway with his truck once before oil that day, and was aware of the situation of affairs at that place, The truck which he was using was seven feet from the outside i’ilfi -of the tire on one side to the outside rim of the tire on the other, so that as he went through the driveway he had but one foot and -one inch more than sufficient room to pass with his truck, and as lie was driving out upon the sidewalk at the time the injury was received, from some' cause which is not known, his left forward wheel struck .the hubstone with such force that he was thrown into the street and received injuries which caused his death.

Upon this state of affairs it was claimed by the plaintiff, that the city was negligent, because it maintained for several years prior to the accident this hubstoné at the corner of the driveway, which was an obstruction to the street, which served no purpose, and which was entirely unnecessary, and which so narrowed the driveway that it made it unsafe for persons who had occasion to use it.

The defendant, on the contrary, claimed that it was guilty of no negligence in maintaining the driveway as it was originally laid out j that no duty rested upon it to do any more with regard to that driveway than to maintain it in a reasonably safe condition as it was originally built, and that if the plaintiff’s intestate saw fit to attempt to use the driveway in the condition in which he knew that it was, he took the risk of his attempt, and that his administratrix is not in a position to say that his death took place solely because of its negligence.

In the examination of the question it must be assumed that the driveway was- a part of the public street; that it was originally laid out and paved and that "it was maintained by the city for that purpose as a part of the street, these facts having been stated in the opening, however far from the actual truth they may be.

It is not claimed that the surface of the driveway was not in a reasonably safe condition for use, but it is said that upon the facts stated a jury would have been justified in finding that the driveway was not of sufficient width to serve the purposes for which it was intended, and, therefore, the city was negligent in thus laying it out. There is no ordinance or regulation which establishes the width of a driveway across the sidewalk for the.purpose of permitting one to go over the street into the premises of a private individual, AH that any one is required to do who has occasion to lay out such a driveway is to use reasonable care to make it reasonably safe for those persons who have occasion to use it. In so laying it out he is called upon only -to provide for carriages of such width as are ordinarily used. The width of such carriages is a matter of common knowledge, of which the courts may take judicial notice, as they may take notice of .every other matter which is ordinarily known to mankind. (Isaacson v. N. Y. C. & H. R. R. R. Co., 94 N. Y. 278; Steers, v. Liverpool, N. Y, etc., Co., 57 id. 1; Pearce v. Langfit, 101 Penn. St. 512.) The width of the track of carriages as well as of railroad cars, as is well known, is four feet eight an ó one-half inches, and whoever has occasion to lay out a driveway is called upon only to lay it with reference to use by a carriage of that width, unless he has reason to know that other carriages of greater width are accustomed to. be driven upon it. Undoubtedly a person-is at liberty to use the highway with whatever vehicle he may see" fit to drive upon it which is -fit for that purpose, but if he sees fit ter go upon the public street with a vehicle of tin-usual construction or of unusual weight, if the highway which is built for ordinary carriages and to sustain an ordinary weight should prove too narrow for his carriage, or should break down under the extraordinary weight-which he sees fit to put upon it, he cannot insist that the city is negligent. Such is the rule which is laid down in regard to traction engines and carriages of such weight passing over ordinary high*ways, and the same rule should be applied in regard to all high*ways. So, therefore, when the city built this driveway — if it diet-build it, as alleged in the opening—it was called upon simply ter make provision for a carriage of the ordinary width which people were accustomed to use, and if the carriage which was in use attire time the accident happened, did, by reason of its extreme width, take up so large a proportion of this driveway as that the drivewayr which, for a carriage of ordinary width would have been safe, become unsafe for this carriage because of its extreme width, the city was not liable, in the absence of proof that trucks of this-extreme - width were accustomed to be driven over it. It is well settled that the existence of a hubstone like this at the intersection of two roads is not negligence, unless it is so placed as to unduly, reduce the width of the highway, even if ■ it is negligence them (Dougherty v. The Village of Horseheads, 159 N. Y. 154.)

Within the facts which were offered to be proved in this case, the cases above cited, and many others which are cited in the opinion in Dougherty v. Village of Horseheads (supra), establish, we think, that there was no negligence on the part of the city in constructing' and maintaining this driveway.

We think, too, that the plaintiff’s intestate, when he undertook 'to drive through this passage with a truck of such extreme width, being, as the opening shows, familiar with the passage, took upon [himself the risk, if there was any, which was necessarily invol ved in that act. He knew the width óf the driveway; he knew the .•condition of its surface, which, as we must conclude, was sUch as to make the driveway in that regard reasonably safe for use; he knew 4he width of his own truck and how much space there would be to .-spare when he attempted to pass between the pile of stone and the jhubstone; and in attempting to go over that passage he was just .as well aware of the apparent danger, if there -was any, as it was .possible for a man to be. If it was not safe for him to attempt to drive that truck over that passageway in that condition he knew it, and, if he. attempted to drive it, he certainly . took the risks .•himself.

The case is not within the case of Schafer v. The Mayor (154 N. Y. 466). In that case, the so-called obstruction was left precisely in the middle of the highway, so that it was quite possible that one using the highway, even with due care, would run upon it. The .court held that because the obstruction was ' in the middle of the "highway, a person attempting to use the highway was not precluded ■from attempting to pass, and if he did attempt to pass, using reasonable care, he was not guilty of contributory negligence if, without his own carelessness, he ran upon the obstruction; but in that •case the court said that the question was a very close one, and the case was not decided without' dissent. In this case, however, there •was no obstruction in the driveway, but, so far as appears, that part .of the road was in perfect condition. The obstruction, if it was an •obstruction, was out of the track, and the plaintiff’s intestate did mot keep in the track which was provided for him to drive over..

The judgment and order must be affirmed, with costs to the ¡respondent.

Van Brunt, P. J., Ingraham and McLaughlin, JJ., concurred; Barrett, J., dissented..