11 N.Y.S. 289 | N.Y. Sup. Ct. | 1890
Lead Opinion
I advise an affirmance of the judgment. This was not less a sidewalk because it was naturally fitted for the purpose, and had been adopted by the public and used as such from time immemorial, instead of being an artificial one. Natural adaptation in great part made construction unnecessary. It was upon a public and much-used street, and was a section of a continuous sidewalk, of which the other portion had been constructed. It needed the removal of small irregularities upon its surface to make it reasonably safe. The village had the power and the means to do this, and, under • the circumstances, ought to have done it. Saulsbury v. Village of Ithaca, 94 N. Y. 27. The fact that the village did not lay the flag-stones does not excuse it. It clearly accepted and adopted the advantage of their natural adaptation to the purposes of the walk.
Respecting' the cause of the intestate’s fall, the evidence supports the verdict. It is reasonably clear that the intestate fell because of the irregularities in the surface of the natural flag-stone. We can speculate as to other causes, as, that he was careless, or that his infirm knee failed to support him. There can hardly be said to be any evidence tending to prove that he fell from either of these causes. If we are to indulge in speculation, we might possibly say that he first died and then fell. But if there was any evidence tending to suggest any other cause than the defects in the walk, the jury passed upon it. Proof to an absolute certainty of the cause of his fall is not necessary. If the evidence fairly tends to show that the intestate fell because of the defects in the sidewalk, and also tends to show a possibility that he fell from other causes, then the casei is for the jury. The question is whether the one cause has more support tlian any other in the evidence. It is only in those cases in which the evidence plainly points as much to an adequate cause for which the defendant is not liable, as to a cause for which the defendant is liable, that the court can say, notwithstanding the verdict, that the case is
With some doubt as to the liability of the village to keep the place in good condition where the accident happened, as my associates agree as to such liability, I concur in within opinion.
Dissenting Opinion
(dissenting.) The plaintiff brought this áction to recover for the death of her intestate, caused by the alleged negligence of the defendant in not maintaining safe and suitable sidewalks, by reason of which plaintiff’s intestate was killed. The action was tried at the Warren circuit, and resulted in a verdict for the plaintiff on which judgment was entered. At the trial, a motion was made by defendant for new trial upon the minutes, which was denied. The defendant appeals from the order denying the motion for a new trial, and also from the judgment entered upon the verdict. The case discloses that Glen street is one of the principal streets in the village of Glens Palls; that said street is planked to the width of 12 feet, from the bridge across the Champlain canal to the bridge across the Hudson river, in said village; and that the defendant has never constructed or maintained a sidewalk on either side of such plank-road between these points, although that street is much traveled by pedestrians. On the north-easterly side of the planked part of the street is a path or walk, which has been used as a sidewalk or way for pedestrians to pass along Glen street from one bridge to the other for about 50 years, although no artificial sidewalk has ever been constructed by the village or village authorities, the travel being upon a natural surface of a rock, or rocks, which crop out at that point, and along which the planks of the traveled portion of the street are laid. The "rock which has thus been used as a walk is of uneven surface, being ridgy or wavy, at some points on a grade with the plank on the street, and at some points higher than the plank, the walk being somewhat irregular in width; and, as described by witnesses, has at two points a drop or step of about eight inches extending diagonally across the same. This rock, or walk, is represented by the evidence as slippery when wet or coated with ice,' and pedestrians are proved to have slipped and fallen on the same before the accident complained of. The case does not show that the village authorities, by any formal act, ever adopted this sidewalk or ever applied any labor or any attention to the same, and it remains in the same condition in which it was before the incorporation of the defendant, except as it has been worn by travel. On the 3d of May, 1884, plaintiff’s intestate, an aged and infirm man, while passing over this walk, fell, striking his head upon the plank, and while in that position the wheels of a loaded vehicle passed over him, causing his death. The appellants insist that there is no evidence of negligence on the part of the defendant to justify or sustain the verdict, or uphold the judgment; that, not having adopted or constructed a •sidewalk at this point, the defendant owed no duty to the deceased or to the public in relation thereto, and are in no way responsible for injuries to persons who pass over the same, and may be injured by reason of its uneven surface. On the part of the respondent, it is insisted that it is the duty of the defendant, under the express provisions of the charier and by-laws adopted in pursuance thereof, to erect and maintain a safe and suitable sidewalk at this point, and that, by reason of failure to do so, the defendant is liable. Chapter 291, Laws 1870, under the general provisions of which the defendant ■was incorporated, authorizes the trustees to make by-laws for certain specific
As these by-laws were received in evidence in this case without objection, they must be treated on this appeal as having been legally adopted and promulgated, in accordance with the provisions of section 3, tit. 3, c. 291, Laws 1870; and this brings us directly to the consideration of the effect of section 14 of the ordinance or by-laws of June 18, 1883. Was that ordinance or bylaw an adoption by the defendant of sidewalk on both sides of all of the streets of the village? In other words, was the adoption of this by-law a judicial determination by the village to exercise the discretionary power of erecting and maintaining a suitable and reasonably safe sidewalk at this point along Glen street? The rule in this state seems settled that a municipality has a judicial discretion in determining whether or not it will build, or permit to be built, a sidewalk in any given street, and with the exercise of that discretion the court cannot interfere. Saulsbury v. Village of Ithaca, 94 N. Y. 30. In this case the court uses this language: “It is true that whether a municipal corporation shall build, or permit to be built, a sidewalk on any of its streets, is matter of discretion not to be regulated by the courts.” An examination of the facts shows that this sidewalk had been constructed by some party other than the village of Ithaca, but it had been used as a sidewalk, in connection with the street, for over a year, to the knowledge of the defendant, and its liability was placed upon the ground of the acquiescence, on the part of defendant’s officers, in the construction of the walk and use thereof by the public. Upon this branch of the case the court says: “In this ease, therefore, it can make no difference how the walk came into existence if the corporation, with notice, permitted it to be used for public travel. By the act of the builder, and acceptance or acquiescence in the building of it on the part of the defendant’s officers, they had control over it, and it became the property of the village as completely as if it had been put in position^ by the village itself.” It will be seen that the only distinguishing feature between that case and the one at bar is the fact that that was an artificial structure, while the
It is true that an artificial walk composed of flag-stone had been constructed by some one on the line of this street from the canal bridge, about 100 feet to the point where the natural rock surface cropped out, which pedestrians were accustomed to use as a sidewalk; but at that point all artificial improvement ended, and there was no evidence that the village authorities had done any affirmative act from which it could be claimed that they had exercised their quasi judicial functions of adopting this natural rock as a part of the system of sidewalks of the village. Was the allowance, by the village authorities, of its use by the public in connection with the artificial walk from the canal bridge, and its location within the boundary of Glen street, such an acquiescence in its use as a sidewalk, as to authorize the jury to find that it had been adopted by the village authorities as such? We are of the opinion that it was. If injury had occurred on the walk between the canal bridge and the surface rock, by reason of the same being in a dangerous or unsafe condition, the village would have been held liable, within the case of Saulsbury v. Village of Ithaca, supra. Glen street was a much-traveled thoroughfare. This walk was much used by pedestrians. It had been so used for 40 years, and was proved to have been used by the president of the defendant. In Saulsbury v. Village of Ithaca, the court says: “In this case, therefore, it can make no difference how the walk came intn existence if the Corporation, with notice, permitted it to be used for public travel.” 3sTo case has been cited applying this language to a natural walk, but as this natural rock surface was a part or continuation of the artificial
But it is insisted on the part of the defendant that, under the charge of the judge at the trial, the jury must have found that the place where the deceased fell was manifestly dangerous, and, if that were so, the plaintiff’s intestate must have been guilty of contributory negligence, and could not for that reason recover. The accident in this case occurred in the day-time at 3 or 4 o’clock in the afternoon of the 3d of May, and any defect that would render the sidewalk manifestly dangerous must have been visible to passers-by. But the evidence in this case does not disclose on what particular part Of this walk the plaintiff’s intestate fell. The only witness who saw the accident says in answer to a question put by the court, that he could not see from where he was whether the deceased’s feet were on a level place or not, when he slipped and fell. Upon that evidence, the plaintiff fails to establish that the injury resulted from the defective or uneven surface of the walk. If this walk was defective at some point and in some particular that alone is not enough to authorize a recovery. It must also appear that the injury was occasioned by such defect. It is true in another part of this witness’ testimony lie says that deceased’s foot rested upon a rise in the walk, and slipped off, but if, as the witness afterwards states, he could not see from where he was whether deceased’s foot, at the time he stepped, was on a level place or not, toe statement that his foot rested upon a rise and slipped off must have been an inference only, and not a fact known to the witness. It is not every accident that befalls persons traveling on streets and sidewalks that creates a liability against a municipality, and, unless the injury is clearly traced by the proof to the defective walk, the defendant is not liable. The burden is with the plaintiff to show, not only defect in the walk existing from the defendant’s negligence, but that, by reason of that alone, without fault or negligence on the part of her intestate, the injury was occasioned. The failure of the plaintiff to establish by direct proof that the injury resulted from deceased stepping or stumbling on a defective portion of the sidewalk, when considered in connection with the undisputed evidence of deceased’s defective limb, by reason of which he was liable and accustomed to fall while walking on a smooth surface, left the jury to speculate as to the cause of the injury. From the evidence it was impossible for the jury to determine which ■of these two possible causes produced this fall. He had fallen, and the fall had produced fatal results, but what caused the fall is left in doubt. In solving this doubt, it is probably creditable to the kindness of human nature that such doubts, if settled by a jury, are settled in favor of the weak against the strong; of the individual as against the municipality; and hence the rule of law that, if the fact is left by the proof, in such a condition that the injury may be attributable to either of two causes, for one of which the defendant is, and for the other is not, liable, no recovery can be had. As was said in Hunter v. Railroad Co., 116 N. Y. 624, 23 N. E. Rep. 9: “If the case is left in such a condition that it is just as possible the injury came from one cause
If I am right in the above conclusions, then it is unnecessary to examine the question raised by the appellant as to the absence of proof on the part of the plaintiff that intestate was guilty of no contributory negligence. I am, therefore, of the opinion that the judgment should be reversed, and a new trial ordered.