115 N.E. 759 | NY | 1917
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *289 The plaintiff, as administratrix of the estate of her husband, brings this action for the damages suffered through his death. She has obtained a judgment against three defendants, the International Railway Company, the city of Buffalo and the Windsor Motor Car Company. Her husband met his death in an automobile collision. The car in which he was riding belonged to the Windsor Motor Car Company, and was driven by one Fairman, its salesman and general manager. There is evidence that Fairman was driving negligently. He attempted to pass a car ahead of him, but gave no warning of his approach. The car ahead moved out into his path to pass a heavy mail wagon in front of it. To avoid collision Fairman swung his own car sharply to the left, and it collided with a trolley pole in the centre of the highway. Judgment has gone against the Windsor Motor Car Company on the ground that it is chargeable with the negligence of its servant. Judgment has gone against the International Railway Company and the city of Buffalo on the ground that the trolley poles were unreasonable and dangerous obstructions.
The collision occurred in Main street near its intersection with Florida street in the city of Buffalo. Main street in that neighborhood has a width of one hundred feet. Each sidewalk is twenty-five feet wide, and there is a space of fifty feet from curb to curb. The tracks of the International Railway Company, the successor of the Buffalo Street Railway Company, run through the centre of the street. Authority to lay them was granted by the legislature in 1866 (L. 1866, ch. 479). At first the cars were drawn by horses, but for many years the motive power has been electricity. A change of power was first authorized by the common council in 1889. The consent granted at that time affected that part of Main street between Cold Springs and Scajaquada creek, which includes the scene of this collision. The council did not prescribe the location of the poles, and the railway company *290 placed them at the centre of the street in the space between its double tracks. The poles stand at intervals of one hundred and twenty-five feet. They are without the protection of curbstones or other guards. About the same time there was a like change of power in other streets and districts. A change was authorized in Niagara street in 1890. In that street the resolution of the common council imposes as a condition the use of centre poles unless the side pole construction is preferred by the abutting owners. In 1891 a change was authorized in another section of Main street, a section between Michigan and Ohio streets, south of the Cold Springs district. There the council required the side pole construction, unless the centre poles were preferred by the abutting owners. By that time centre poles had already been installed in the Cold Springs district, the scene of the collision, and they remained there without objection. The first suggestion of danger came in 1909. In December of that year a resolution was adopted by the council requiring the railway company to remove the "centre trolley poles now remaining in Main street between the Erie Railroad and City line, the same being dangerous to traffic in said street," and in February, 1912, a resolution similar in form required the removal of centre poles between the New York Central Belt line and the Erie railroad. Those parts of Main street are south of the scene of the collision. They are given over almost exclusively to business. Main street, where the collision occurred, is chiefly a residence district. In that district no change of the location of the poles has ever been ordered by the council, and none has been made. The trial judge told the jury that the railway company and the city were liable if poles located in the centre of the street were unreasonable and dangerous obstructions of the highway. Whether that ruling may be sustained is the first question to be determined.
The railway company had the right with the consent of *291
the common council and the property owners to electrify its road (L. 1884, ch. 252, § 12). The consent of the council was obtained. The consent of the property owners, after all these years of acquiescence, must be presumed (Railroad Law, §
The question, therefore, is whether there is any evidence that in April, 1912, when the accident occurred, the location of these poles was dangerous, and that the danger was unreasonable. When the road was first electrified in 1889, there were, comparatively speaking, but few trolley lines in this state. We may assume without deciding that the choice of centre poles rather than side poles, even though unwise, was, in those conditions and at that time, an error of judgment and no more. But in the years that have followed conditions have changed. The use of trolleys has become almost universal; the centre poles have been supplanted generally, though not everywhere, by side poles, placed upon the sidewalk; the automobile has changed the ancient modes of travel, and magnified the likelihood and dangers of collision. We think the jury had the right to find that with these changes the centre poles have become a menace to the traveler. That they were a menace in other parts of Main street the common council had itself resolved. It announced that judgment in 1909 and again in 1912. In each year the railway company received the resolution, and obeyed it. We do not overlook the suggestion that there was a difference of conditions. Main street at the points of change was narrower, it is said, than at the scene of the collision. Its width was forty feet instead of fifty. At the time of the resolutions, however, an order had been made to widen it. Evidently the centre poles were still felt to be a source of danger. There was also a difference, it is said, in the character of the neighborhood. One section was devoted to business; the other in the main to residences. But even in the residence section business had gained a foothold. We think that conditions, even though not identical, were similar to such an *293
extent as to make the change of some significance. But aside from any admission implied in the defendant's conduct, the very location of the poles gives room for conflicting inferences. Plainly, there was at least some risk of accident; plainly, the risk was needless, whatever its degree; plainly, therefore, the inference of fault may be drawn unless the risk was so remote or trifling that reasonable men in the exercise of reasonable care would not have striven to avoid it. In the light of all the circumstances, we think that question was for the jury. We have the express admission of the city, three years before the accident, that in another section of the same street the poles had become a danger to public traffic. We have the railway's submission to the order, which found its justification in the danger (Wigmore on Ev. § 282; Stevens v. Boston El. R. Co.,
The defendants refer to cases in which a city planning an improvement has been held to be exonerated for errors of judgment in the plan (Urquhart v. City of Ogdensburg,
Reliance is placed upon rulings that stepping stones, hitching posts, hydrants, shade trees and the like are legitimate obstructions (Robert v. Powell,
The point is made that if the centre poles were safe when first erected, the city could not compel them to be moved, though they later became dangerous. We are referred to our decision inPeople ex rel. City of New York v. N.Y. Railways Co. (
The appeal of the Motor Car Company brings up the question whether Fairman, the driver of the car, was using it at the time of the accident in the business of his employer. As to that, enough was shown to make a question for the jury.
The judgment should be affirmed with costs.
Concurrence Opinion
The burden was upon the defendants railway company and city to show that the poles were in the traveled part of the street by virtue of legislative authority, directly or representatively given. Proof tending to so show was not produced. Authority was not expressly given. Authority to electrify was not in any measure authority to so appropriate the streets by placing the poles in them, because there was not proof *297 that in 1884, or thereabouts, it was reasonably necessary, or within the legislative knowledge or intention or within judicial notice it was deemed reasonably necessary, that for the purpose of electrification the poles should be placed as they were. There is no proof that such placing could have been deemed reasonably essential to the electrification. Therefore, there was not given the authority expressly or through necessary implication to so place them. Acquiescence on the part of the state or municipal authorities did not constitute or operate as the authority. Under the power to electrify, in the absence of any consent or direction on the part of the state locating the poles, the railway company, irrespective of any statute or ordinance so providing, was bound, as a matter of law, to so place the poles that the use of the street by the public should not be unnecessarily impaired or rendered dangerous. Its duty was, not to do that within the street which was most advantageous to itself and its patrons, but in so far as was practicable and consistent with its use of electricity as a motive power, to refrain from obstructing the street or affecting or interfering with the free, safe and untrammeled public passage and traffic. This follows necessarily from the nature and purposes of our public highways. The record presents no evidence, and we may take judicial notice that it is not the fact, that in 1889, or at any subsequent time, in the street railroad world or with engineers or men of common affairs, it was deemed impracticable or inconsistent with proper and effective electrification to place the poles without the part of the highway appropriated by the traveling public and where, obviously and manifestly to common observation and intelligence, they would in a very substantial and important degree affect the ordinary and paramount use of the highway less than when placed within its traveled part. There was no evidence in the record tending to show that the appropriation of the street in part by the poles was authorized directly or through necessary *298 implication. The appropriation was at all times without authority or right and the poles were, as a matter of law, a public nuisance.
I dissent from that part of the opinion of Judge CARDOZO which suggests that the original placing of the poles was a mere error of judgment on the part of the railway company. The railway company had not the right, through any fact or rule of law, to render unsafe or inconvenient the use of the street for street purposes, except as actually required by practicable electrification. It is not in conformity with common sense or common knowledge to assume or presume that poles standing exactly and fully in the traveled part of the street affect its safety and utility no more than they would standing between the curbing and the sidewalk.
I dissent also from that part of the opinion of Judge CARDOZO which suggests that in case the poles had been originally placed where they were, with authority and right, changing conditions might have converted them into nuisances or negligent obstructions, although the authority or right had been in no wise withdrawn or the annulled. I think that if the state had expressly or through necessary implication authorized the poles to be placed as they were, the authority would have remained forceful and valid until the state, by some action, rescinded or annulled it.
I vote for affirmance, for the reasons stated.
HISCOCK, Ch. J., CHASE, HOGAN and CRANE, JJ., concur with CARDOZO, J., and COLLIN, J., concurs in result in opinion; CUDDEBACK, J., takes no part.
Judgment affirmed. *299