Monomoy Co. v. City of New York

132 N.Y.S. 438 | N.Y. App. Term. | 1911

LEHMAN, J.

The plaintiffs in these actions have recovered damages for injuries to their property caused by the bursting of a water main. The complaints allege that the breaking of the said main was due to the defendant’s negligence in failing to maintain the same in safe condition and to make proper examination and repairs; that, although immediately notified of said break, defendant permitted the water to flow therefrom for many hours. The trial justice held that the defendant was not .negligent in maintaining, examining, or repairing the water main, but was negligent in not shutting off the water quicker.

[1] While reasonable men may differ as to the degree of speed which may reasonably be required of a municipality in acting after it has received notice of an emergency, the finding that the city has been guilty of negligence in failing to send a man to shut off the flow of water for over an hour after it had notice of the emergency was certainly not erroneous as a matter of law.

[2] The city is, however, responsible only for the result of its negligence, and the plaintiffs have failed to show that the damages to their goods were the result of the delay in shutting off the water. It appears that these goods were left in a basement storeroom which became flooded with water, but it is fairly inferable that practically the entire damage was done to these goods before the city could possibly have been expected to shut off the water. Certainly, if any material injury came to the goods through the continuation of the flow thereafter, the plaintiffs were at least as negligent in allowing their goods to remain where the water would spoil them as the city was in failing to send a man to shut off the water.

[3] The plaintiffs claim that the judgment should nevertheless be affirmed because the trial justice should upon the evidence have found, that the city was negligent in maintaining the main. I do not think that we should consider this question upon this appeal. It can be litigated upon a new trial, but we cannot well sustain a judgment by making new findings of fact, except upon issues that are expressly admitted or not disputed.

The judgment in each case should be reversed and a new trial ordered, with costs to appellant to abide the event. All concur.