181 A.D. 367 | N.Y. App. Div. | 1918
The verdict for the plaintiffs followed a charge which was quite as favorable to the city -as the facts justified. The escape of water from this hydrant was at such pressure and volume that it covered an area of 14,000 square feet to a considerable depth, so that it came above the lower sills of the warehouse windows. The hydrant was found broken far below the ground, where it was not subject to surface shocks. There was no evidence as to the nature of this break, whether an old fracture, or of recent appearance. The broken hydrant — itself the chief evidence of the true cause of the injury — was taken to the city storage yard, and after-wards broken up and disposed of for junlc..
Such a hydrant can be readily tested by pumping into it under pressure.
While a muncipality is not liable for escape of water from its mains or hydrants without evidence of negligence (Jenney v. City of Brooklyn, 120 N. Y. 164), a city, like any other defendant, having the duty of inspection and user over the apparatus causing damage, is subject to the effect of omitting to produce evidence, showing how the injury arose, or what was the difficulty on the occasion of such damage. (Gravey v. City of New York, 117 App. Div. 773.) Here the city made no explanation, although it does not show that such an explanation could not be made. This left it for the jury to say, on the expert testimony, whether defendant had absolved itself from negligence.
The judgment and order should, therefore, be affirmed, with costs.
Present—Jenks, P. J., Thomas, Mills, Rich and Putnam, JJ.
Judgment and order unanimously affirmed, with costs.