Higginson v. City of New York

Full title: HENRY L. HIGGINSON and Others, Copartners in Trade Doing Business under…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 18, 1918

181 App. Div. 367 (N.Y. App. Div. 1918)

168 N.Y.S. 866

Opinion

January 18, 1918.

Edward A. Freshman [ Lamar Hardy, Corporation Counsel, and Thomas F. Magner with him on the brief], for the appellant.

Edward J. Mastaglio [ John K. Berry with him on the brief], for the respondents.

Present — JENKS, P.J., THOMAS, MILLS, RICH and PUTNAM, JJ.

PER CURIAM:

The verdict for the plaintiffs followed a charge which was quite as favorable to the city as the facts justified. The escape of water from this hydrant was at such pressure and volume that it covered an area of 14,000 square feet to a considerable depth, so that it came above the lower sills of the warehouse windows. The hydrant was found broken far below the ground, where it was not subject to surface shocks. There was no evidence as to the nature of this break, whether an old fracture, or of recent appearance. The broken hydrant — itself the chief evidence of the true cause of the injury — was taken to the city storage yard, and afterwards broken up and disposed of for junk.

Such a hydrant can be readily tested by pumping into it under pressure.

While a municipality is not liable for escape of water from its mains or hydrants without evidence of negligence ( Jenney v. City of Brooklyn, 120 N.Y. 164), a city, like any other defendant, having the duty of inspection and user over the apparatus causing damage, is subject to the effect of omitting to produce evidence, showing how the injury arose, or what was the difficulty on the occasion of such damage. ( Gravey v. City of New York, 117 App. Div. 773.) Here the city made no explanation, although it does not show that such an explanation could not be made. This left it for the jury to say, on the expert testimony, whether defendant had absolved itself from negligence.

The issues as to reasonable promptness in shutting off the water, in view of its dangerous and threatening flood, were properly left to the jury, and their finding against the city was a fair conclusion from all the evidence.

The judgment and order should, therefore, be affirmed, with costs.

PER CURIAM:

Judgment and order unanimously affirmed, with costs.