Harrigan v. City of Brooklyn, 16 N.Y.S. 743

Harrigan v. City of Brooklyn

16 N.Y.S. 743 | N.Y. Sup. Ct. | 1891

Pratt, J.

It cannot be said there was not evidence, in case the jury believed the plaintiff and his witnesses, to sustain the verdict, although it seems very doubtful, from reading the testimony, whether the accident occurred at the time or place claimed by the plaintiff. The credibility of the witnesses was for the jury to pass upon, and under familiar rules the verdict must stand as to the facts. It is undoubtedly true as a proposition of law that, where power is vested in public officers to make improvements, such as street sewers, etc., and keep them in repair, the duty to make them is quasi judicial or discretionary, involving a determination as to their necessity, location, etc.; and for a failure to exercise this power, or an erroneous estimate of the public *744needs, no civil action can be maintained. Judge Cooley says in the Toolan Case, 37 Mich. 154: “In planning a public work a municipal corporation must determine for itself to what extent it will guard against possible accidents. Courts and juries are not to say it shall be punished in damages for not giving to the public more complete protection, for * * * that would be to take the administration of municipal affairs out of the hands to which it has been intrusted by law. ” It is perfectly clear in this case that no human foresight could ever have anticipated such an accident as is here claimed. The city authorities had never paved or flagged the sidewalk, and in that regard had never invited the public to use it, except at their own risk. The authorities had never planned to make a sidewalk for travel, and any one attempting to use it took the risk of accident, unless there was some dangerous hole or obstruction which had been placed there since the sidewalk was constructed so far as planned. The notch where plaintiff claims he was injured was not at a crossing, and it is a most remarkable coincidence (not to say unreasonable) that the plaintiff should cross the street at this'precise spot, and happen to put his foot in that particular notch in the curb-stone. Applying the rule before laid down, it does not seem to us that the plaintiff established a want of reasonable care on the part of the defendant. It was really such a defect as would not be liable to be in that locality, and one which no reasonable man would ever suppose would be likely to result in injury to any one. We think the judgment ought to be reversed, and new trial ordered; costs to abide event. All concur.