193 A.D. 655 | N.Y. App. Div. | 1920
Lead Opinion
The action is for negligence whereby the motor car of the defendant was overturned and the plaintiff’s intestate, a passenger therein, was killed. The contention of plaintiff is confined to defects in the steering apparatus, which she asserts could have been detected by proper inspection. The contention involves the proposition that such inspection would have shown the necessity of the application of a lubricant to prevent the defect. The learned court charged that the obligation of the defendant was reasonable care, which involved reasonable inspection to determine whether the motor car was in reasonably safe condition for work — an absolute and no delegable duty. As actionable negligence involves wrongful act or breach of positive duty {Vaughan V. Transit Development Co., 222 N. Y. 83),- the plaintiff must establish violation of a positive duty owed to her intestate. {Sutton v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 243; S. & R. Neg. [6th ed. Street] § 8, and cases cited.) The question, then, is whether the defendant owed this obligation of reasonable inspection to plaintiff’s intestate.
The defendant bought the motor car and thereupon assigned it to the official use of defendant’s department of public works. At the time of the casualty the car was in charge and control of the bureau of the city engineer, a branch of that department. On the day of the casualty the intestate had solicited the city engineer for carriage to a quarter of the city of Yonkers. The engineer consented and went with the intestate in the car, which was driven by an employee of that bureau and of the city. But the intestate was not an officer or employee of that department or of that bureau. He was not servant or officer of the defendant, inasmuch as he was an assessor. {Lorillard v. Town of Monroe, 11 N. Y. 392; Reiser v. Mayor, etc., 104 id. 68.) There is no proof that the defendant had ever duly authorized the said department or the said bureau or any of its- officers, servants or employees, or indeed any of defendant’s officers, servants, agents or employees, to carry outsiders in that car. Mere official possession of the car under the circumstance did not justify the city engineer in the belief that he was authorized to carry this intestate or any third person as a matter of favor. It cannot be said that the city
So far as this record shows, the intestate was not engaged about the city’s business. Although an assessor of the city of Yonkers, he was discharging governmental duties. (Authorities, supra; Williams’ Municipal Liability for Torts, 45.) There is no proof that the intestate was inquiring as to a " special assessment of a local character, made for some municipal improvement in which the general public has no direct interest.” (See Id. 46.) The city engineer, at most, but accompanied the intestate as a volunteer. There is no proof that the defendant knew or should have known of this journey or knew or should have known that the department or its bureau or any of its officers, employees or agents had ever carried outsiders in the car. The testimony of a former commissioner of public works that he and the mayor and other officials had agreed that the car might be used by city officials on city business, did not avail the plaintiff’s intestate. It is not shown that the intestate ever heard of this determination. Even if he had, it is not shown that these officials had any authority over the disposition or use of the car, and their mere agreement or direction would not bind the defendant. (Smith v. City of Rochester, 76 N. Y. 506.) Moreover, the intestate was not a city officer engaged about the city’s business. The
The intestate was not a wrongdoer, a trespasser, so to speak, when he entered the car and journeyed in it, inasmuch as he had the acquiescence of the person then in control of the' car. But I think that upon this record the status was but that of a licensee. (Vaughan v. Transit Development Co., 222 N. Y. 79; Heslcell v. Auburn L.-, H. & P. Co., 209 id. 90.) I think that the language of the court in West v. Poor (196 Mass. 183) applies: “ The nearest analogy that occurs to us is that of a self invited guest in whose presence the host acquiesces and whose enjoyment he seeks to promote, or that of a gratuitous bailee. In the former case the degree of care required is that of. licensor and licensee (Plummer v. Dill, 156 Mass. 426; Hart v. Cole, 156 Mass. 475), which, as has often , been said, requires only that the licensor shall hot set traps for the licensee and shall refrain from reckless, wilful or wanton misconduct tending to injure him. Massell v. Boston Elevated Railway, 191 Mass. 491.” In Patnode v. Foote (153 App. Diy. 494) the court cites and adopts the doctrine of Pigeon v. Lane (80 Conn. 237) as to a licensee, and says: “A person thus invited to ride stands in the same situation as a bare licensee, who enters upon real property which the licensor is under no obligation to make safe or keep so, but who is liable only for active negligence,” citing Birch v. City of New York (190 N. Y. 397). In Birch’s Case (supra, 404)' the court held that such an inspection as the court in the case at bar charged was an obligation of this defendant, was not the obligation owed to a bare licensee. (See, too, Weitzmann v. Barber Asphalt Co., 190 N. Y. 452; Vaughan v. Transit Development Co., supra.)
There are other questions that arise in such a case, as to the power of the municipal corporation to purchase and to use a
I advise that the order be reversed and that a new trial be granted, with costs to abide the event.
Rich, Putnam and Blackmar, JJ., concur; Kelly, J., concurs in separate opinion.
Concurrence Opinion
I concur.
The present general use of automobiles by city departments attaches additional importance to the legal questions involved in this case. Is the city liable for injuries occasioned by these automobiles, whether from lack of inspection rendering the automobile unsafe or from negligence in operating the machine? I presume it depends on the facts of the particular case, the use to which the car is put, the persons operating it or riding in it. We have recently decided that the owner of an automobile who invites a friend' to ride is bound to use reasonable care in operating the car and is responsible for the negligence of the chauffeur in stich operation. (Lowell v. Williams, 183 App. Div. 701; affd., 228 N. Y. 592.) But municipal corporations are not liable in all cases as in the case of an individual. One well-established principle is that there is no liability when the wrongful act is in the performance of a governmental function as distinguished from acts done for the benefit or profit of the city itself. (Maxmilian v. Mayor, 62 N. Y. 160; Smith v. City of Rochester, 76 id. 506; Bailey v. Mayor, etc., 3 Hill, 531; Hill v. Boston, 122 Mass. 344.) The difficulty arises in distinguishing, corporate duties from those which although performed by city employees are for the benefit of the State or the general public.
The automobile in the case at bar was purchased and paid for by the city of Yonkers for the use of the city engineer, an officer appointed pursuant to the Second Class Cities Law (Consol. Laws, chap. 53 [Laws of 1909, chap. 55], § 97). The city engineer is an official appointed pursuant to the act
These duties might well include governmental as well as purely corporate work, and the record is not very clear on this subject. If his duties were altogether governmental I doubt if the city would in any case be liable for his failure or the failure of his subordinates to properly inspect the automobile. In his request for the automobile the city engineer says that the “ Bureau [Department of Public Works, Bureau of Engineering — Second Class Cities Law, supra, art. 7] has under supervision some 30 contracts for public work,” and other contracts are contemplated and it is necessary for the city engineer to go over the ground. The powers and duties of the department of public works in a city of the second class include control of highways, public places, parks, docks, bridges, sewers, lighting, baths, recreation piers, city water works and general supervision and control of all work performed under any contract of the city for local or other improvements. (Second Class Cities Law, supra, § 91, as amd. by Laws of 191*2, chap. 189.) The city engineer appointed the chauffeur of the car from the municipal civil service list. Whether the defendant city woul'd be" liable to invitees in any case for injuries caused by this automobile, I think would depend upon the particular work in which it was engaged at the time.
But, as the presiding justice points out, on the day of the accident the car was not engaged in the performance of any municipal work. Whether we consider the deceased assessor
Order reversed and new trial granted, with costs to abide the event.