Opinion
November 11, 1908.
Charles Marvin, for the appellant.
Richard H. Thurston and Charles B. Swartwood, for the respondent.
Although it was one of the controverted questions upon the trial, we may assume for the purposes of the appeal that the place where the plaintiff was injured was a public street in the city of Elmira. It was on the outskirts of the city, in a neighborhood sparsely settled, unfenced and adjacent to a cornfield. There was a pathway at the side of the roadway made of ashes, and at the place where the accident happened the path was from a foot to eighteen inches above the level of the roadway, and descended at an angle of about forty-five degrees, a distance of about two feet to the roadway. While the plaintiff was walking on this path after dark he was run into by a boy riding upon an unlighted bicycle, and was knocked to the ground and received the injuries of which he complains. He charges that the city was negligent in not maintaining lights at the place in question sufficient to make the place reasonably safe for public travel. This was the only question submitted to the jury with respect to the defendant's negligence.
In relation to the place and the manner of the accident the plaintiff testified: "It was very dark. * * * I saw something and stepped to the right a little bit so as to not be in the way of it. It was somebody coming on a wheel, and struck me and knocked me into the ditch. * * * When I saw this object coming toward me from the light I tried to step out, thinking, of course, that they would turn to the right and I would be clear. * * * I was perfectly familiar with that street. * * * From that path the grade drops down towards the road. That is what I had in mind when I spoke about the ditch. * * * When I saw the bicycle coming the bicycle was between me and the light. It was quite a piece off when I saw it. I do not know as I could tell how far, five rods maybe, or ten rods." It thus appears that he saw the boy approaching about five rods in advance of him, and that he turned a little to the right to allow him to pass, assuming that the boy would turn to his left. The boy, however, did not turn, and the collision followed. The evidence shows that there were two arc lights of about 2,000 candle power each, one situated 306 feet and the other 321 feet from the place of the accident, and that there was also an incandescent light 190 feet distant, all of which were maintained by a private corporation under a contract with the defendant. There was no claim that all these lights were not burning at the time.
It is conceded by both sides that in establishing street lights a municipality exercises a quasi judicial or governmental function, and that error in the exercise of this function is not negligence.
It is also settled law that the duty rests upon a municipality to maintain its streets in a reasonably safe condition for public travel. If, in order to maintain such a condition, it is necessary to erect barriers or to place lights at certain places, the failure so to do is negligence for which the municipality is liable to one receiving injuries by reason of such failure. The cases where this principle has been held are those where the street is out of repair or where there is some excavation, defect or obstruction in the street or something unusual rendering it unsafe, and where in the night time lights or barriers are essential for the protection of travelers. ( Deufel v. Long Island City, 19 App. Div. 620; Brewer v. City of New York, 31 id. 244; Storrs v. City of Utica, 17 N.Y. 104; Wilson v. City of Troy, 135 id. 96.)
But here there was no defect in the street unless the manner of its construction may be called such. As to that it was simply an unimproved street in an outlying part of the city with the ordinary dirt or gravel roadway and having a narrow side or foot path covered with ashes, elevated a little above the roadway and without any abrupt descent from its level to that of the roadway. The condition was not unusual for roads of that character, and was not one requiring the presence of lights or barriers to make it reasonably safe for the protection of a traveler and especially not for the protection of one who was familiar with the place as this plaintiff was. There was nothing here upon which a claim of negligence against the city could be based. It would be just as reasonable to say that the defendant was culpable because it did not have a policeman at hand to drive the boy with his bicycle off from the sidewalk when he was unlawfully riding thereon, before he injured the plaintiff. It was the wrongful act of the boy which was the proximate cause of the accident and not any negligence of the city.
The defendant excepted to the submission to the jury of the question whether the street was sufficiently lighted to make it reasonably safe for public travel. The exception was a good one, and the order denying the motion to set aside the verdict and for a new trial should be reversed and said motion granted, with costs to the appellant to abide the event.
All concurred; SEWELL, J., not sitting.
Order reversed and motion to set aside the verdict and for a new trial granted, with costs to appellant to abide event.