196 A.D. 831 | N.Y. App. Div. | 1921
Lead Opinion
The complaint specifies three grounds of negligence, viz.: (1) The application to the highway of an unusual quantity of liquid tar or road material; (2) failure to cover the same with sand or gravel; and (3) failure to leave a space for automobiles to pass around said tar or road material. There is no allegation of negligence because of the absence of signs or warnings on the highway. The court nevertheless refused to charge the jury as requested by the city of Albany that there could be no recovery against the city because of the absence of such signs or warnings. The court did charge, however, that the other defendant, the Standard Oil Company, was not hable because of such omission, thereby emphasizing in the minds of the jury that they might find the city negligent because thereof. Nothing is more firmly established than that a recovery must be secundum allegata et probata. That rule clearly has been violated and it seems to me it cannot be said that such violation of the rule has not produced the verdict against this appellant. There is absolutely no evidence charging the city with negligence because too much of the slippery material was used and in respect to the other grounds of negligence specified in the complaint the evidence against the city is not so preponderating in favor of the' plaintiff that a substantial error in the charge to the jury may be overlooked. The jury may very well have found from the evidence that if the slippery material had not been excessively applied by the Standard Oil Company there would have .been no obligation on the part of the city to purchase sand or gravel for the protection of travelers but at the same time may have concluded that the city should have lighted or guarded the street and thus under the charge of the court the city may have been held liable for negligence not alleged in the complaint.
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Van Kirk, J., concurs; Woodward, J., dissents, with an opinion, in which John M. Kellogg, P. J., concurs.
This action was commenced in December,. 1918, against the defendant, the city of Albany, and against the Standard Oil Company of New York. For a complaint against the defendants, the plaintiff alleges in his complaint that the defendants, on the 30th of July, 1918, covered the entire surface of the Southern boulevard, a street in said city, with a great and unusual quantity of liquid tar or road material, to the depth of nearly an inch; that it did not cover it with sand or gravel; that it left no spa'ce untarred, for automobiles to pass over said street, and by reason thereof automobiles going upon said street would be likely to slip and skid, and that the plaintiff’s automobile did, on said 30th day of July, 1918, slip and skid, colliding with the automobile of another person (Harry J. Laut) and causing damage to plaintiff’s car. The plaintiff had a verdict against the defendants, the city of Albany and the Standard Oil Company; this is a companion case to Laut v. City of Albany, and arose out of the same accident. Plaintiff had judgment which was appealed to and decided by this court at a previous term. (191 App. Div. 753.) In that case plaintiff had a verdict against both defendants and upon such appeal we reversed the judgment. Our reversal was based upon errors in the reception of evidence and in the charge of the court to the jury; we held that the defendant the Standard Oil Company was an independent contractor and, therefore, not liable. The decision upon appeal was not unanimous. The. contrary view being that the city was liable whether the Standard Oil Company was or was not an independent contractor, and that notice, actual or constructive to the city, was not necessary to hold it liable, citing Minton v. City of Syracuse (172 App. Div. 39). That decision was based upon the existing relation of master and servant. Here the court set aside the judgment as against the Standard Oil Company upon the ground it was an independent contractor; that defendant being eliminated we are called upon to consider how the appellant is affected and whether any of its rights have been violated. So far as holding the defendant city liable for any negligent act of its codefendant, it cannot be done in this case; the codefendant'
Van Kirk, J., concurs.
Dissenting Opinion
The complaint in this action alleges that the Southern boulevard in the city of Albany is a public highway which it is the duty of said city to maintain in a reasonably safe
The case grew out of the same accident involved in the case of Laut v. City of Albany (191 App.'Div. 753), and the present trial seems to have moved along the lines indicated in the opinion of the court in that case. The only question upon which there was any serious dispute in the evidence was whether the oil or tar covered the entire roadway and the amount of oil remaining upon the surface. The defendant’s witnesses testified that the oil was of a light quality and that it was spread with an apparatus which made it impossible to produce more than a light covering, and that only one-half of the roadway was covered even with this fight covering. The plaintiff’s witnesses, on the other hand, testified that the road was covered from the grass on either side of the driveway, and that it was of a depth ranging from a quarter of an inch to two or three inches in depressions. Taking the plaintiff’s version of the situation, there can be no doubt that a dangerous condition was created, and we are of the opinion
We have examined the various errors suggested but we are unable to find any reason for disturbing the judgment.
The judgment and order appealed from should be affirmed, with costs.
John M. Kellogg, P. J., concurs.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.