Opinion
June 27, 1906.
Frank S. Becker, for the appellant.
E.R. Harder, for the respondent.
The defendant is incorporated under chapter 414 of the Laws of 1897, known as the "Village Law." By section 141 of said law the streets and highways of a village "are under the exclusive control and supervision of the board of trustees."
In Nelson v. Village of Canisteo ( 100 N.Y. 89) it is said: "It has been so uniformly and frequently held by the courts of this State that a municipal corporation, having power to maintain and control streets, is bound to exercise ordinary and reasonable care and diligence to see that they are kept in a reasonably safe condition for public travel, that a general rule to that effect may now be considered as established and to be applicable, whether the act or omission complained of and causing the injury was that of the municipal authorities or some third party."
The fair meaning of the complaint is that by reason of the obstructed highway, public travel had been diverted around the obstruction and over the property of the knitting company and that this latter way was used for the time being as a public highway with the knowledge and acquiescence of the defendant. More than that, if this complaint is true, the village by its wrongful omission to remove the obstruction from its public street had practically forced the public to use as a highway the property of the knitting company. The duty of the defendant to the public was to remove the obstruction from its highway, and failing in that duty it cannot escape responsibility for reasonable care and watchfulness in reference to the temporary highway, which by reason of its negligence was necessarily used and which it compelled the public to use because of the obstruction in the highway proper which it negligently permitted to exist. The knitting company notified the defendant that it intended to obstruct the temporary road over its premises. It then clearly became the duty of the defendant either to remove the obstruction which it had wrongfully permitted to exist in the highway proper for a period of at least a month, or to take some measures to warn the public of the danger of passing over the temporary road. This is not a case where an accident happens without a reasonable opportunity for the municipality to guard against the same.
While we have not been referred to any authority in this State involving the question now under consideration, the precise principle has been determined in Vermont adversely to the defendant in several well-considered opinions in cases not as aggravated as this case, inasmuch as in those cases the regular highways were unavoidably impassable. ( Dickinson v. Town of Rockingham, 45 Vt. 99; Batty v. Town of Duxbury, 24 id. 155; Willard v. Town of Newbury, 22 id. 458.)
It would be indeed a strange doctrine if a village could wrongfully suffer its highway to remain obstructed, force the public to adopt and use a way around the obstruction, knowingly permit this latter way also to become dangerous, take no measures either to open the original highway or to warn or guard the public against impending danger, and then escape liability for an accident on the theory that the accident happened on private premises by reason of an obstruction placed thereon by the owner of the premises. That is this case according to the plaintiff's complaint.
It is of course impossible to determine in advance of the trial what the facts are in reference to this controversy. But the plaintiff should have an opportunity to establish if he can to the satisfaction of a jury the allegations of his complaint.
The interlocutory judgment must be reversed, with costs, and the demurrer overruled, with costs, with the usual leave to defendant to withdraw the demurrer and to answer on payment of such costs.
All concurred, except CHESTER, J., dissenting.
Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with usual leave to defendant to withdraw demurrer and answer on payment of such costs.