Argued June 19, 1885
Decided October 6, 1885
Eli Soule for appellant. J.F. Wetmore for respondent.
That the plaintiff was injured, and that the injury was occasioned by a cause over which the defendant had control and power of prevention, are two facts about which there is no dispute. The only question is, whether it was within the duty of the defendant as well as within its power to act in relation to the matter. It was organized as a village in 1873, under the "act for the incorporation of villages." (Laws of 1870, chap. 291.) The injury was suffered by the plaintiff in December, 1877, while passing through one of its streets, by stumbling over a hatchway projecting into and above the sidewalk. It was in that condition when the village was incorporated, and the only affirmative answer by the defendant to the plaintiff's claim for compensation was "that the injuries complained of were caused" by his own neglect and fault. But this has been found the other way by the referee, and his conclusion, sustained as it is by the Supreme Court, and not without evidence to warrant it, is conclusive here. So are his findings that by the obstruction the way was made dangerous, that the trustees of the defendant had knowledge of it and its condition from the very time of its inception, and were guilty of negligence in not removing, or compelling its owner to remove it. The point made by the learned counsel for the appellant is that although it had power to do either, it was not bound to exercise it. In this respect, however, we think its duty was not less than its power. Indeed 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. ( Conrad v. Ithaca, 16 N.Y. 158; Weet v. Brockport, id. 161; Saulsbury v. Ithaca, 94 id. 27.) The principle applies here, unless as the appellant claims the power of the trustees was "limited to making ordinances and by-laws, under which nuisances might be abated." It does not seem to be. They might make both, but the omission to do so in no way relieves the village from the duty of caring for and preparing its streets. This was assumed by the very act of organizing as a village under the statute referred to, and for its neglect to the plaintiff's injury, the action has been properly maintained.
We have not failed to observe that the learned counsel for the appellant has grouped together upon his points, under a single allegation of error, exceptions to the admission of testimony and to the rejection of testimony, to the refusal of the referee to nonsuit and to his refusal to find as requested, and to his findings and conclusion as actually made. The exceptions are very numerous. No ground is stated for the support of any one. By examination we learn that some at least are not well taken. We find none that seem to be. If among so many, any one can be sustained by reason or authority, our attention should have been called to it more specifically.
The judgment appealed from should be affirmed.