198 A.D. 183 | N.Y. App. Div. | 1921
Lead Opinion
The action is brought to recover damages for injuries suffered in a street in the city of Binghamton, charged to have been caused by a defect in the street surface. At the close of the evidence the court granted the motion for a nonsuit on the theory that there was no actual or constructive notice to the city of the defect. (Second Class Cities Law, § 244.) This presents the one question on this appeal.
. There was evidence in the case which would have justified the jury in finding the following facts: The street surface at the place of the accident was a brick pavement. The city had made an excavation for the purpose of a water pipe con
This work in the. street being done by the city was not completed. The city had filled the excavation with dirt. It produced witnesses to show that the filling was properly done, the dirt was tamped in and a hard surface, sufficient for normal traffic, was left. This plaintiff disputes and among other things shows the condition which existed when the injuries were received and shortly prior thereto. The credibility of interested witnesses describing conditions at the place of the excavation is for the jury. The city is chargeable with knowledge of the condition in which it left the street surface. If the surface was left in a dangerous condition, the public should have been reasonably protected by lights or barriers or both. If the surface was left in a reasonably safe condition for the travel to be expected there, and later, from some cause other than the unfinished condition in which it was left, a defect appeared, the city was entitled to notice of that defect before it could be held liable in negligence. If, on the other hand, the defect was due to ordinary travel, because of the unfinished and imperfect condition in which the city left the street surface—■ because its previous safe condition had not been restored — notice of the defect was not a condition precedent to a recovery by the plaintiff. (Minton v. City of Syracuse, 172 App. Div. 39; Tabor v. City of Buffalo, 136 id. 258.)
The judgment is reversed and a new trial granted with costs to plaintiff, appellant, to abide the event.
- John W. Kellogg, P. J., and Cochrane, J., concur; Woodward, J., dissents, with an opinion in which Kiley, J., concurs.
Dissenting Opinion
The complaint alleges that the defendant prior to November 1, 1919, “ made an excavation, hole and opening in the pavement on Conklin avenue ” in the city of Binghamton, and that “ after making such excavation, hole and opening, the defendant * * * wrongfully, unlawfully, negligently and carelessly omitted, failed and neglected to properly fill said excavation, hole and opening, but left it only partly filled with loose dirt, by reason whereof at the time of the casualty hereinafter mentioned and for a considerable time prior thereto said Conklin avenue * * * was and remained in an unsafe, dangerous and defective condition with a hole or depression therein nearly, if not quite, a foot deep, about two feet wide measured east and west, and about thirteen feet long measured north and south; that in addition to leaving said space, place and street in a defective and dangerous condition as aforesaid, said defendant, The City of Binghamton, * * * negligently and carelessly failed, omitted and neglected to place or leave thereat a lighted red lantern or any other signal or warning of such condition.” It is further alleged that the plaintiff ran into this hole with an automobile, that the vehicle was deflected from its proper course and upon the track of a street surface railroad, where a collision occurred, resulting in the injuries for which damages are claimed. These matters are, for the purposes of this discussion, purely incidental, as the complaint was dismissed upon the theory that the plaintiff had failed to give the notice required by section 244 of the Second Class Cities Law.
There is no claim that the plaintiff had given the notice. The case proceeded upon the theory that the defendant having itself produced the dangerous condition was not within the
The evidence may be deemed to have warranted a jury in finding that the city of Binghamton had made an excavation in the street named for the purpose of making a water connection for a house being constructed along that highway; that after making the connection the excavation was refilled with the dirt which had been excavated, with the exception of a rock weighing about 200 pounds, and a portion of the paving brick; that the earth was tamped and rounded up over the spot to a height of about five inches, and that automobiles and teams passed over the same without showing any substantial depression for a period of a half hour after the work was done; that the work was left at about a quarter to four in the afternoon of November 1, 1919, the paving brick not being relaid but placed upon the curb near at hand obviously to await the settling of the materials placed in the excavation. It appears to have been misty at this time, and subsequently “ quite a bit ” of rain fell and at seven-thirty of the same evening a car owned by one M. E. Hoose appears to have run into the excavation and been disabled. So far as appears no one had discovered the depression of about one foot until seven-thirty, at the time the Hoose car drove into it. So far as the evidence discloses there was no change in the appearance of the place from the close of the work until this prefiminary accident. The car in which the plaintiff was riding followed the Hoose car at an interval of about five minutes, and the accident complained of occurred.
It appears from the evidence, and it was conceded by the plaintiff’s counsel, that there was not to exceed fifteen minutes of constructive notice of the condition of this highway to the defendant; and the evidence clearly shows that so far as any appearances could be trusted the street was in as good condition as it could be expected after the completion of the necessary and lawful work of making a water connection in the highway. It is a matter of common observation and experience that in making excavations it is impossible to
Concurrence Opinion
concurs.
Judgment and order reversed, and new trial granted, with costs to the appellant to abide the event.