12 N.E.2d 785 | NY | 1938
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The causes of action alleged in the several complaints herein arose out of the same transaction and are grounded in negligence and nuisance. They were tried together and resulted in verdicts in favor of the several plaintiffs upon which separate judgments were entered. Upon appeal, the several judgments and orders denying motions for a new trial were reversed upon the law and the facts and the complaints dismissed. We must presume that the jury found every fact in favor of *43
plaintiffs necessary to sustain their verdicts if there was any supporting evidence. In examining the record to see if proof of the facts established a cause of action, appellants must be given "the benefit of every favorable inference which can reasonably be drawn." (Faber v. City of New York,
The accident out of which the causes of action arose occurred at about 11:15 P.M., January 31, 1932, while Nelson Isaac, Gunning, DeRosia and LaPoint were proceeding in an automobile along a highway in the town of Queensbury. The automobile collided with a fence erected and maintained across the highway near the westerly boundary line of the Delaware and Hudson Railroad property between that line and the railroad tracks. Isaac died as the result of the accident and the other plaintiffs received more or less serious injuries. The jury were authorized to find upon the facts adduced at the trial that all of the occupants of the automobile were free from negligence contributing to the accident or to their injuries. There was evidence to sustain the finding that the fence constituted a defect in the old highway, if it was still left open for traffic, which amounted to a nuisance. The only question presented requiring further attention is whether there was any evidence upon which the town of Queensbury may be held liable for negligence, as a result of which the accidents in the case at bar arose. Defendant seeks to maintain that the facts show as matter of law that the State of New York had control over the maintenance of the highway at the time of and immediately preceding the accident.
That part of the highway on which the accident occurred was a part of the State system of highways, a part of route 32B (County Highway 656), connecting with routes 9 and 22 (United States Routes 4 and 9, respectively), extending generally in an easterly and westerly direction between Glens Falls and Hudson Falls. The highway crossed the tracks of the Delaware *44
and Hudson Railroad Company at grade and at an angle of approximately forty-five degrees about 150 feet easterly of the city line of Glens Falls. The Superintendent of Public Works, pursuant to the authority vested in him by section
"2. That said existing crossing at grade shall be eliminated by closing the present street between the property lines of the railroad company and by diverting traffic by the construction of a new street and a new undercrossing of the railroad to be located about 430 feet northwesterly of the present crossing, substantially in accordance with the plan submitted at the hearing on June 19, 1928 * * *.
"3. That the existing crossing shall be maintained until the new street undercrossing is completed and opened to traffic after which the existing street shall be closed and discontinued across the railroad."
Service of the aforesaid order of December 13th was made upon the Supervisor of the town on January 3, 1929. Thereupon the contract for the work was let and construction of the new strip of highway and underpass was commenced and completed. On August 25, 1931, the Public Service Commission made an order approving the completed work. A certified copy of the order was served upon the Supervisor of the town of Queensbury with a statement that "this is sent to you so you may have notice of the progress of the work," and inclosed with the notice was a form of notification to the Commission under section
In the latter part of June previous to the making of the order of August 25, 1931, the new highway and underpass were completed and opened for traffic. When that occurred, the construction foreman of the Delaware and Hudson Railroad Company erected the fence in question upon the land of the railroad company, and thereafter *46 down to the time of the accident kept the fence in repair. The town of Queensbury furnished no men or material for the construction or repair of the fence. At the time of the erection of the fence, the Department of Public Works unquestionably had control over the old highway. It ceased either to maintain or repair the highway from and after July 14, 1931.
On September 18, 1931, the Department of Public Works made its official order discontinuing the limited section of County Highway 656 as reconstructed under Public Service Case No. 4696 as a section of County Highway 656 and provided that no further maintenance by the State should be performed thereon and ordered "that said section of said highway be and it is hereby turned over to the Town of Queensbury, Warren County, for future maintenance and repair." This order was not officially served upon the Supervisor of the town of Queensbury until March 18, 1932. Defendant asserts that before the portion of the old highway upon which the accident happened could revert to the jurisdiction of the town (1) a determination by the Department of Public Works that that portion no longer served a useful purpose as a part of the State highway system must have been made under section
Prior to 1908 the highway in question was a town highway. It was then improved and became a county highway, and the State took over its maintenance in 1909 and continued to maintain and repair it until July 14, 1931.
There is no statutory duty imposed upon the town to maintain State or county highways in a safe condition for travel or to remove obstructions therefrom except *47
that imposed by section 53 (now section 140, subd. 9) of the Highway Law, which requires the town superintendent to remove obstructions caused by snow and to keep culverts and waterways free from snow and ice. The accident here was not due to snow or ice or to clogged culverts. Liability for maintenance of obstructions on a State highway can arise only in violation of a duty imposed by statute. (Graham v. Town of Urbana,
A highway can revert to the town under either section 62 or section 63 (formerly sections 181 and 181-a, respectively) of the Highway Law and, for the purposes of this case, only under the provisions of one of those sections. The provisions of section 62 have no application to a case such as this where a proceeding is instituted before the Public Service Commission for the elimination of a grade crossing. Determination of the necessity of a change of location of a limited section of a highway for the improvement of its alignment or of dangerous conditions authorized by the provisions of that section must be made by the Department of Public Works, whereas the determination of the necessity for the elimination of a grade crossing must be made by the Public Service Commission. Section 63 provides specifically for a case where a grade crossing is eliminated through proceedings before the Public Service Commission. Where proceedings are taken for a change of location of a limited portion of a highway under section 62, the cost of the relocation of the highway, exclusive of the cost of providing the new right of way which must be borne by the *48 county, shall be paid from the funds which are provided for the repair and reconstruction of State highways, whereas in a case such as this where the elimination of a grade crossing is undertaken under the provisions of the Grade Crossing Elimination Act (Laws of 1928, ch. 678; Unconsolidated Laws [McKinney], Book 65, §§ 2011-2024) the cost, in so far as it is important here to indicate, shall be borne forty-nine per cent by the State, one per cent by the county in which the crossing is located, and fifty per cent by the railroad corporation affected thereby (§ 2013). It is quite clear that the two sections have relation to entirely different proceedings for different purposes. It must be presumed that the Legislature intended that sections 62 and 63 should have different applications; otherwise there would have been no occasion for the enactment of the separate sections.
Under section 62, prior to its amendment by chapter 739 of the Laws of 1937, it was provided that "the department of public works shall cease to maintain the section of highway discontinued, * * * upon the completion of the substituted section, and it shall revert to the jurisdiction of the town." Under section 63, the portion of the highway eliminated reverted to the town upon completion of the elimination work only where a determination had been made to the effect that it no longer served a useful purpose as a part of the State highway system. Notice of such determination was required to be given to the town. Although the section contained no provision for notice, inasmuch as the determination affected the rights of persons and property, reasonable notice was required. The provisions of section 63 were alone applicable under which a reversion of the eliminated portion of the old highway could be made to the jurisdiction of the town.
There is nothing contained in section 63 that required the determination to be made by the Department of Public Works. Having in mind the general scheme of *49 highway administration, it might have appropriately been provided that such a determination should be made by the Department of Public Works.
The Department of Public Works attempted to make a determination such as required under section
With the order of the Department of Public Works ineffectual, the question arises as to whether or not such a determination had been made that the eliminated portion of the State highway, after completion of the work, would no longer serve a useful purpose in connection with the general highway system of the State as would effect a *50 reversion of the eliminated portion of the highway to the town. The Department of Public Works was the moving party before the Public Service Commission and was a party to the determination of the latter contained in its order of December 13, 1928. Attention has already been called to the fact that the town was a party to the proceedings before the Public Service Commission and represented throughout by counsel and that a copy of the order of December 13, 1928, was duly served upon the town. That order provided that after the elimination work had been completed and the underpass opened for traffic the existing street should be closed and discontinued across the railroad. Necessarily, when closed, it could no longer serve a useful purpose in the State highway system. We have also called attention to the fact that the Public Service Commission served upon the town its order of August 25, 1931, to the effect that the work had been completed and approved, that the Supervisor of the town had acknowledged the receipt of that notice on September 3, 1931, and of the order and that he had also acknowledged that the work had beencompleted and that it had been approved.
A sufficient determination was made in the proceeding before the Public Service Commission in which defendant was a party and sufficient notice was given to meet the requirements of the provisions of section 63. We are not permitted to insert in that section a clause that the determination must be made exclusively and under all circumstances by the Department of Public Works when the Legislature saw fit to be silent on that subject. If that conclusion is correct, it follows that no further or different determination, order or notice to the town was necessary and that from and after the third day of September, 1931, the portion of the highway located within the town which was eliminated ceased to be a county highway or a part of the State highway system and reverted to the jurisdiction of the town. The town superintendent *51
thereby and thereupon was charged with the duty of maintenance. The defect existed in the highway from July 14, 1931. Several accidents, similar to the one on which these actions are based, had occurred between July 14, 1931, and the date on which the automobile containing Isaac and the other plaintiffs ran into the obstruction. There was sufficient evidence to make it a question of fact whether the superintendent had actual notice of the defective and dangerous condition of the highway or whether it had existed for such a length of time as to charge him with notice thereof. (Cf. Fidelity Deposit Co. v. Queens CountyTrust Co.,
In each action the judgment should be reversed and a new trial granted, with costs to abide the event.
CRANE, Ch. J., O'BRIEN and HUBBS, JJ., concur; LEHMAN, LOUGHRAN and FINCH, JJ., dissent.
Judgments reversed, etc. *52