Opinion
February Term, 1897.
C.H. Wats and D.G. Griffin, for the respondent.
Edward N. Smith, for the appellant, The City of Watertown.
Purcell Carlisle, for the appellants Ryan Avery.
The evidence contained in the record tends to prove that Washington street was one of the principal thoroughfares of the city of Watertown; that the sewer, at the point where the accident occurred, had been excavated to the depth of at least ten feet, and that it was from eight to ten feet in width.
It was conceded by one of the defendants when upon the witness stand that there was no other point along its entire length which presented greater dangers to travelers; and there is no pretense that a watchman had been stationed there to warn people of the dangerous condition of the street. The evidence as to the character and extent of the means adopted to prevent accident was more or less conflicting; so that a clear question of fact respecting the defendants' negligence was raised; and counsel, upon the argument, frankly conceded that as to that feature of the case the verdict of the jury was conclusive.
The court was advised with equal candor that the only grounds relied upon for a reversal of the judgment and order appealed from were (1) the absence of all liability upon the part of the defendant the city of Watertown in any event; (2) the excessive amount of the damages awarded; and (3) the failure of the plaintiff to establish due care and effort upon her part to avoid the danger which confronted her. We will proceed, therefore, to consider these several propositions in the order in which they have been stated.
The contention that the city of Watertown is not liable for the injuries which befell this plaintiff rests upon the assumption that, by entering into an independent contract with a third party to construct the sewer, over whose methods and acts it had no control, and from whom it had exacted a stipulation that proper precautions should be taken for the protection of the public, the municipality relieved itself from all further duty or obligation in respect of the matter. Such undoubtedly is the general rule ( Wood v. City of Watertown, 58 Hun, 298, and cases cited), and it is one which might be invoked in aid of the defendant's contention were it not for the fact that the circumstances of this case create an exception to the rule.
The defendant is a municipal corporation. As such, it rests under an obligation to keep its streets in a proper and safe condition for public travel, and it is bound to exercise a reasonable degree of diligence to accomplish this end. If it obstructs one of its streets or permits it to get out of repair it is liable, in the absence of reasonable care, to one who is injured in consequence thereof. And it is settled by an unbroken line of authorities that it cannot absolve itself from this liability by an attempted delegation of its duty to a third party who happens to be prosecuting a public work under a contract with the municipality, in which express provision is made for the protection of the public by one contractor. ( Storrs v. City of Utica, 17 N.Y. 104; Busso v. City of Buffalo, 90 id. 679; Pettengill v. City of Yonkers, 116 id. 558. See, also, 2 Dillon on Mun. Corp. § 790.)
The learned counsel for the defendant cites the case of Herrington v. Village of Lansingburgh ( 100 N.Y. 145) as an authority in support of the proposition advanced by him. That case, however, was very different in its circumstances from the one in hand. There the plaintiff's team, which was standing in a street crossing the one in which a sewer was being constructed, was frightened by the noise of a blast, fired by the contractors in the prosecution of their work, and while attempting to control his horses the plaintiff was injured. It was held by a divided court that the defendant was liable, but in the prevailing opinion EARL, J., is very careful to say that, "At the place where the horses were fastened the street was in perfect condition, and the horses did not become restless or frightened from anything existing in the street, and the accident was in no way caused by any imperfect condition of the street, but simply by noise resulting from the blast."
It will be seen at a glance that this case had no application to the one now under consideration, and we pass, therefore, to the question of damages, which, it is insisted by the defendant, are excessive in their amount.
Considerable evidence was given upon the trial of the case respecting the nature and extent of the plaintiff's injuries, some of which did, perhaps, tend to show that they were not so serious as she claimed them to be, and in a measure to justify the charge that she was malingering. But this feature of the case was fully submitted to the jury, who saw and heard the various witnesses, and, in view of the conflicting character of the evidence upon this branch of the case, we do not feel disposed to interfere with their verdict, especially as the damages awarded cannot be deemed excessive if the statements of the plaintiff and her witnesses are to be believed.
The serious question in this case is that presented by the defendant's third proposition, which is, in effect, that in approaching this open sewer the plaintiff was unmindful of the obligation resting upon her to exercise such a degree of care and caution as should be commensurate with the dangers surrounding her. It is a well-established rule of law that a person using a public street is not required to exercise vigilance to discover dangerous obstructions lying in his path, but may walk or drive by day or night, relying upon the assumption that the corporation has fulfilled the duty imposed upon it to keep its streets in a safe and proper condition for public travel. ( Pettengill v. City of Yonkers, supra.)
This rule has no application, however, to cases where a traveler approaches an obstruction with knowledge of its existence and location. ( Weston v. City of Troy, 139 N.Y. 281; Neddo v. Village of Ticonderoga, 77 Hun, 524.)
That the plaintiff had notice of the excavation in Washington street is not to be denied, for she had seen it and walked over it but a few days prior to the day she received her injury; but even if such were not the case, it is quite apparent that the means adopted by the contractors to warn people of the situation were such as must have conveyed some notice to her that the street was not in its normal condition, and, therefore, if there were nothing more of the case than that which has just been stated, we should be inclined to hold, as a matter of law, that the plaintiff was guilty of contributory negligence, even upon her own narration of the circumstances attending her falling into the sewer. But before this question can be properly disposed of, there are other facts and circumstances to be considered which, in our judgment, tend quite materially to weaken the defendant's position.
It seems that a platform or bridge had been constructed by the contractors to throw across this chasm, upon either side of which there was a handrail, and at either end of which was a step and a guardrail. When properly adjusted, this bridge connected the crosswalk in such a manner as to afford a perfectly safe and easy means of passage over the sewer.
The plaintiff was aware of the existence of this bridge and of the purpose for which it was used. On Wednesday preceding the day of the accident she had used it to cross from the Arcade to Washington Hall block. But as the work upon the sewer progressed it became necessary, or desirable, to remove the bridge, and this was done the following day. On the evening of the accident, which was Saturday, the plaintiff says she had not heard of the removal of the bridge, and supposed it was still in the position in which she had last seen it. There was no sign or notice at the street corner to indicate that any change in the situation had taken place, and, acting upon the assumption that the bridge was still there, she started to cross Washington street, and in going towards the sewer met people coming from the opposite direction who had apparently just crossed the same, as, indeed, one or two testified was the fact, they having walked upon some ties about six inches in width which had been thrown over the excavation. The plaintiff testifies that she was looking ahead intently to see where she was going; that she supposed the bridge was there and was looking for it; that it was dark, and the first thing she knew she went into the ditch feet first. In this statement of the situation, and of the manner of her falling into the sewer, she is corroborated by the witness Clark, who was walking behind her; but just here, and in this connection, it is proper to advert to another circumstance upon which the defendant places great reliance in its contention that the plaintiff was not free from negligence which contributed to the injury of which she complains. Several of the defendant's witnesses testified that a number of logs or poles, which were some six or eight inches in diameter, and which had been used in blasting to keep the pieces of rock from flying into the air, were laid upon the Washington street crosswalk at the close of the day's work on Saturday, and that the plaintiff could not have reached the sewer without climbing over or going around these poles. It is insisted that this, of itself, afforded ample notice of the situation, and that in addition thereto the red and white lights were indications of danger, which ought not to have been disregarded.
The evidence, as a whole, seems to leave no doubt that there was a red light upon the west and a white light upon the east side of the sewer. But this might well have been the case had the bridge remained in position, for there were various obstructions, such as an engine, piles of sand, barrels, planks, and other articles in the street, aside from the ditch itself, to be guarded against. So that the significance of these lights was, in view of the conditions with which the plaintiff had the right to assume she was surrounded, a matter concerning which different opinions might be entertained. And the evidence relating to the situation of the poles, and the extent of the barrier they presented, is subject to the same criticism. If, as some of the witnesses testified, they extended clear across the walk and were piled on top of each other, it would be difficult to understand how any person, especially a woman, could get over them without receiving some notice of the purpose for which they were thus placed. The plaintiff testifies, however, that, while there may have been some poles there, she neither climbed over nor turned off the walk to pass around them, but that she walked straight ahead into the ditch, and there was ample corroboration of her testimony in this regard to justify the jury in concluding that she told the truth. Nearly all of the witnesses who gave evidence upon the subject say that the poles were thrown across the walk "promiscuously," and many of them, including some called by the defendant, testified that they did not reach across the entire walk, but that there was a space of two or three feet upon the south side thereof which was not covered or obstructed in any manner by them.
These matters were all adverted to by the learned trial justice, who very clearly instructed the jury in regard to their bearing upon the question of contributory negligence; and while the case, so far as this branch of it is concerned, may be regarded as verging upon the border line, we are inclined to think that, upon the whole, it was properly disposed of at the Circuit, and that the verdict of the jury should not be disturbed.
Our attention has been directed to the recent case of Whalen v. Citizens' Gas Light Co. ( 151 N.Y. 70), which is supposed to vindicate the defendant's contention respecting the question last considered. But a mere statement of the distinctive features of that case is sufficient to distinguish it from the case in hand. There the defendant was engaged in laying a gaspipe across a sidewalk in the city of Brooklyn. For this purpose it had removed two of the flagstones of the walk and dug a trench in which to lay its pipe. One of the flagstones which had been removed was laid on top of another, and a space of about five feet in width was left between the two openings, over which a traveler could walk in perfect safety. The plaintiff, an old lady, in broad daylight, with nothing to obscure her vision, and with the situation confronting her made perfectly obvious, tripped over the displaced flagstone and fell, receiving the injuries of which she complained. It was held that in these circumstances she could not recover. The case came directly within the principle laid down in Weston v. City of Troy ( supra), which, as we have attempted to show, has no application to the somewhat peculiar circumstances of the present case.
The judgment and order appealed from should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.