192 N.Y. 403 | NY | 1908
This action was brought to recover damages for a personal injury, alleged to have been received by the plaintiff through the negligence of the defendant.
The plaintiff, Hugo Schuster, a boy eleven years of age, was, on the 15th day of April, 1900, playing in 42d street, between Eighth and Ninth avenues. Some one called that a policeman was coming. He then turned and saw a policeman coming on the south side of the street, and thereupon the plaintiff ran east; as he ran he turned his head to see where the policeman was and saw a car approaching about twenty or twenty-five feet from him. While looking around he stepped in a depression in the pavement and pitched forward on the track and was run over by the car. He described the depression as about four or five feet wide along the car track, and extending six or seven feet toward the curb. The street was paved with stone blocks, and there was some evidence tending to show that the blocks had settled from four to six inches in depth at a place within two feet of the defendant's railroad track. While the evidence with reference to the depression being within the specified distance of the rail of the defendant's track is somewhat meager, it is of such a character that we cannot hold as a question of law that there was no evidence to present to the jury upon that question. The plaintiff claimed that the injuries which he received were caused through the carelessness and negligence of the defendant in operating the car which ran over the plaintiff, and also in maintaining and continuing to maintain a hole near its tracks.
The trial judge charged the jury: "The law imposes upon a railroad company the duty of keeping the space between its tracks and two feet on either side of the track in good and safe condition. If the hole was within the area I have described, you will then consider whether or not negligence may be predicated upon it. The company being charged with *406 the duty of keeping the street in repair as I have described, becomes negligent when it knows that it is out of repair, or it becomes liable in the absence of knowledge that the condition, which by the exercise of reasonable care it should have known to exist, has existed for such a length of time. It is for you to say whether there was a hole, and under the instructions I have given you, whether the defendant was negligent in maintaining it, if there was one." The plaintiff then asked the court to further charge: "That the duty that was laid upon the railroad company to keep its tracks in a condition of permanent repair is an original duty, and that the railroad company cannot await the order of the local authorities before putting its railroad in a condition of permanent repair." The court charged as requested, and an exception was taken by the defendant. This presents the only question which we deem necessary to discuss in this case.
The General Railroad Law (§ 98, chapter 565 of the Laws of 1890, as amended by chapter 672 of the Laws of 1892) provides as follows: "Every street surface railroad corporation, so long as it shall continue to use any of its tracks in any street, avenue or public place in any city or village shall have and keep in permanent repair that portion of such street, avenue or public place between its tracks, the rails of its tracks, and two feet in width outside of its tracks, under the supervision of the proper local authorities, and whenever required by them to do so, and in such manner as they may prescribe. In case of the neglect of any corporation to make pavements or repairs after the expiration of thirty days' notice to do so, the local authorities may make the same at the expense of such corporation." The charter of the city of New York (Laws of 1901, chapter 466, section 391) provides that "No removal of the pavement or disturbance of the surface of any street * * * for any purpose whatever, shall be made until a permit is first had from the president of the borough where the work is to be done."
The duty of keeping the streets and avenues of the city of *407 New York in safe condition for the use of the public primarily rests upon the officers of the municipality, and it was entirely proper that the charter should provide that no removal of the pavement or disturbance of the surface of streets should be permitted without the knowledge and consent of the officers of the city charged with the duty of looking after their care and maintenance. Otherwise, the city might become liable for heavy damages resulting to the traveling public by reason of unauthorized excavations or the leaving of dangerous and unguarded holes in the streets. Whether this provision of the charter was intended to apply to individuals or corporations who under the statute have become charged with the duty of keeping certain portions of the street in repair, it is not now important to determine; for if any portion of such street should become out of repair and dangerous, notice of such condition could readily be given to the proper officer and a permit to make the necessary repairs obtained. Under the Railroad Law, as we have seen, street surface railroad corporations, so long as they shall continue to use the streets of a city for their tracks, shall under the express provision of the statute have and keep in permanent repair that portion of the street between the tracks, the rails of the tracks, and two feet in width outside of the tracks. Here we have a duty laid upon street railroads of keeping that portion of the streets occupied by them in permanent repair. It is true that by the subsequent provisions of the statute the repairs must be made under the supervision of the local authorities, and whenever required by them to do so, and in the manner they may prescribe. But these provisions only pertain to the right of supervision and the manner in which the duty shall be performed, and they do not, nor were they intended, to modify or relieve the street surface railroads from a faithful discharge of their duties as prescribed in the first provision of the statute. In case of neglect of any corporation to make pavements or repairs, after the expiration of thirty days' notice to do so, the local authorities may make the same at the expense of such corporation. This provision *408 doubtless was intended to refer to cases in which the municipality had decided to pave or to make general repairs of a street, for it provides for a notice of thirty days to the railroad company. In case the company then refuses to pave the street or make such repairs, the same may be done by the municipality at the expense of the corporation. This provision of the statute could hardly be held applicable to a dangerous condition of a street suddenly developing such as a cave-in or the appearance of a dangerous hole which needed immediate attention and repair in order to protect the public; for if the provision did apply to such a condition, the city authorities would be powerless to remedy until it had first given notice to the railroad corporation and then wait until the expiration of thirty days before the difficulty could be remedied. The design of this statute doubtless was to enable the municipality to determine the character and manner in which the street shall be surfaced. Some of the streets may be of ordinary earth; others the authorities may determine to have paved with stone, brick or asphalt. Whatever the improvement determined to be made by the municipal authorities, they, by this provision of the statute, are given the power to compel the railroad corporation to conform its portion of the street to that adopted for the remaining part of the street. This provision of the statute was doubtless enacted to take the place in the future of the contracts that had theretofore been entered into to some extent by municipal corporations with street railroads occupying a portion of the city streets and embraces most of the essential provisions of such contracts.
In the case of City of Brooklyn v. Brooklyn City R.R. Co. (
In the case of Doyle v. City of New York and The BrooklynHeights R.R. Co. (
In the case of Worster v. Forty-second Street and GrandStreet Ferry R.R. Co. (
The case of City of Rochester v. Campbell (
In the case of Conway v. City of Rochester (
We, therefore, conclude that the exception to the charge was not well taken, and that, consequently, the judgment should be affirmed, with costs.
CULLEN, Ch. J., GRAY, VANN, WERNER, WILLARD BARTLETT and CHASE, JJ., concur.
Judgment affirmed. *412