69 N.Y.S. 51 | N.Y. App. Div. | 1901
This action was brought by an administratrix to recover damages for the death of her intestate, alleged to be caused through the negligence of the city in permitting a street to be out of repair. On the 23d day of September, 1899, between five and six o’clock in the evening, while it was still light, the plaintiff’s intestate, who was the driver upon an ice wagon, handed the lines to his helper, a man who had driven for twenty or twenty-five years, for the purpose of taking a chew of tobacco. The helper drove down Forty-third street in the borough of Brooklyn and turned into First avenue. When thirty to forty feet in this avenue the driver of the team testifies that “ I struck a rut or something and went into a hole; I don’t know what it was; and he went to put the tobacco in his pocket, and I went to hand him the lines over, and somebody yelled, and I pulled the team up, and he was in between the two wheels of the wagon.” Taking the view of the evidence which appears to have been taken by the jury, plaintiff’s intestate was sitting on the seat on an ordinary ice wagon on the left-hand side. He had handed the lines to his helper, who was a competent driver, and was engaged in taking a chew of tobacco. To do this he reached around into his hip pocket, and the last his helper saw of him upon the wagon he was in the act of restoring the plug of tobacco to his pocket. The helper, who testifies that he was watching the team to keep them out of trouble, did not observe that there was a rut on the left-hand
The defendant appeals from the judgment and from the order ' denying a motion for a new trial, and urges various points with, so much of ability, which are . combatted with' equal energy and. insight into the law, that we are constrained to review the authorities. The appellant urges that ci the plaintiff can in no event prevail unless the claim be sanctioned that a municipal corporation is liable for damages in a civil action for injuries alleged to be caused by permitting to exist an indention made by wagon wheels in the soft, sandy or dirt surface of an unpaved, unimproved road which is in a state of nature, in a sparsely settled, undeveloped and remote part of a large city.” It is true, as' urged by the appellant, that the defendant was not compelled to pave the street, but the authorities to which our attention is called—.and they are numerous— concur in' holding that where a power is conferred on public officers or a municipal corporation to make improvements, such as streets, sewers, etc., and keep them in repair, the duty to make them is quasi judicial, or discretionary, involving a determination as to théir necessity, requisite capacity, location, etc., and for a failure to exercise this power, or an erroneous estimate of the public needs, no civil action can be maintained; but when the discretion has been exercised and the street or improvement made, the duty of keeping it in repair is ministerial, and for neglect to perform such a duty an action by the party injured will lie. (Urquhart v. City of Ogdensburg, 91 N. Y. 67, 71, and authorities there cited; Seymour v. Village of Salamanca, 137 id. 364, 368, and authority cited;,
This case does not- come within the rule laid down in Hubbell v. City of Yonkers (104 N. Y. 434, 439) and Glasier v. Town of Hebron (131 id. 447), that where an accident is one which never happened before, and which in its character is such as not to naturally
We are of opinion that it cannot be said, as a matter of law, that the plaintiff’s intestate was guilty of contributory negligence. The 'evidence indicates that he had turned over the team to his helper, who was a driver of experience; the helper testified, that he was watching the team to keep it out of trouble, and being on the right-hand side of the wagon, he was not in a position to see the rut on the left-hand side. It was not such a conspicuous defect as to come within the rule that liability does not attach where the defect is known and obvious, and all that was required, either of the helper or of plaintiff’s intestate, was that he should exercise a reasonable degree of care. They were not bound to- anticipate this rut, with its dangers; they were only to exercise the degree of care called for by. the kind of road over which they were traveling, and .it can hardly be said that it is negligent to sit upon the seat of a wagon prepared for that particular purpose in passing along the highways of a great city with the team in the hands of a competent helper, traveling 'no faster than a fast walk. We think this case comes within the rule suggested in Schafer v. Mayor (154 N. Y. 466, 472), and that “ if he had survived the accident, it would have been necessary for him, in order to meet the burden of proof, to state what he did and what he tried to do fully and explicitly; but, as he
The judgment and order appealed from should be affirmed, with -costs.
Judgment and order unanimously affirmed, with costs.