166 N.Y. 315 | NY | 1901
This action is brought to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the negligence of the defendant. In front of the Powers building, on Main street, the principal business street in the city of Rochester, there was an areaway which extended into the street six feet four inches, and was twelve feet three inches below the grade of the sidewalk. The descent from the sidewalk to the level of the area was vertical. The excavation was, at the time of the accident that is the subject of this suit, guarded by a railing two feet and a half high, erected along the edge of the sidewalk. On the evening of January 29, 1897, the plaintiff's intestate, who had been standing near the railing on the sidewalk, started to walk across it to take an approaching car. He slipped on some snow which had recently fallen and was precipitated over the railing into the areaway. The areaway and railing had existed for a number of years in the same condition as at the time of the accident. On the trial the plaintiff put in evidence an ordinance of the city of *318 Rochester which prescribed that cellarways or openings, platforms or approaches to any building should have a substantial rail on the sides thereof, at least three and a half feet high. At the conclusion of the evidence for the plaintiff the complaint was dismissed, and the judgment entered on such dismissal has been affirmed by the Appellate Division of the Supreme Court.
This action is not brought to impose liability upon the city for failing to enforce its ordinances, but for default in its own primary duty to maintain its streets reasonably safe and secure for travelers thereon. Nor on the other hand do we consider the areaway to have been necessarily an unlawful encroachment upon the highway and a nuisance per se. Subdivision 7 of section 6 of the amended charter of the city of Rochester (Chap. 561, Laws of 1890) authorizes the common council "to regulate and prevent the use and cumbering of streets, avenues," etc. While the right to excavate areaways or construct stoops in the highway is not an incident to the ownership of the adjacent land, a long usage of the highway for such purposes justifies the inference that the municipal authorities have consented to the presence of such structures on the highway, and "it is competent for the legislature to authorize a limited use of sidewalks in front of buildings in cities and villages for stoops or cellar openings, or underground vaults, for the more convenient and beneficial enjoyment of the adjacent premises." (Jorgensen v. Squires,
The judgment appealed from should be reversed and a new trial granted, costs to abide the event.
PARKER, Ch. J., GRAY, O'BRIEN, HAIGHT and LANDON, JJ., concur; WERNER, J., not sitting.
Judgment reversed, etc.