69 N.Y.S. 360 | N.Y. App. Div. | 1901
Lead Opinion
The action was brought to recover the damages sustained by the plaintiff in consequence of an obstruction in a public sewer which resulted in the overflow of the plaintiff’s premises causing damage. There is no claim that the sewer was improperly constructed, but it is alleged that the sewer became obstructed, and that in consequence thereof the sewerage backed up into the plaintiff’s premises. It appeared that on the afternoon of March 23, 1897, the cellar of the plaintiff’s premises, Yo. 83 Yandam street, in the city of Yew York, became flooded with water six or seven inches deep. The plaintiff’s premises were not directly connected witli the sewer, but there was a broken stone drain constructed along the west wall of Yo. 83 Yandam street, and the floor was so graded that the water would flow to this drain and be carried off through a drain pipe connecting Yo. 85 with the sewer. This arrangement was only to drain the cellar floor, as there were no water closets or running water in Yo. 83. The twenty-third of March was a clear day, no rain having fallen, and the cellar was dry on the morning of that day and on the day before. Upon an examination of the sewer it was found that it was full of water in front of the plaintiff’s premises, but at the corner of Greenwich street, some distance to the west, there was no water, and the sewer from there on was clear. Between ten and eleven o’clock the next morning some workmen came and cleaned out the sewer and finally removed the obstructions, when the water was carried off from the plaintiff’s premises. Yothing of this sort had ever happened in this cellar before. It is quite evident from this testimony that the flooding of the plaintiff’s cellar was caused by an obstruction in the sewer between the plain
When the defendant constructed this sewer, it did so for the benefit of the property adjoining on the street through which it ran, and it then assumed the obligation to provide a sewer competent tó carry off the ordinary flow of water, and to maintain it in such a condition that it would fulfill the purpose for which it was constructed. The sewer was capable of doing the work that was required of it; that is, to carry off all of the sewerage flowing into it from the houses with which it was connected, and a failure to maintain the sewer in this condition would be negligence for which the defendant would be responsible. The principle upon which such a liability has been imposed was stated by Chief Judge Nelson in Mayor v. Fwrze (3 Hill, 615) as follows: “ If, therefore, we concede that the exercise of the power was, in the first instance, optional on the part of the corporation, yet, having elected to act under it, they must be held responsible for a complete and perfect execution. It would be highly unjust to allow that, after constructing these-works the corporation might refuse to keep them in repair, and thus leave the street on which they have been placed in a worse condi
In Barton v. City of Syracuse (36 N. Y. 54) the same question was presented. It is there said : “ Under this condition of authority and duty the municipal corporation were bound, through the proper officers, to a faithful and prudent exercise of power, and carelessness and negligence in that regard created a liability which might be enforced by any one suffering damages therefrom. So the law is firmly established that in constructing sewers and in keeping them in repair, a municipal corporation acts ministerially, and having the authority to do the act, is bound to the exercise of needful prudence, watchfulness and care. * * * It is also insisted that the recovery is erroneous because there was no proof of notice to the corporation of the needed repair before the injury complained of occurred. Such'notice, however, was not necessary in this case. The injury here resulted from an omission of duty — a neglect to-do an act which it was incumbent on the defendant to perform.”
In McCarthy v. City of Syracuse (46 N. Y. 196) the same rule of liability was applied, and Rapallo, J., in delivering the opinion of the court, says: “ But where a sewer has been determined upon and is constructed, all the authorities agree that the duties of constructing it properly and keeping it in good condition and repair are ministerial; and that negligence in the performance of
. We have in these cases a statement of the duty that'is imposed upon municipal corporations in relation to its sewers. This duty “ involves the exercise of a reasonable degree of watchfulness in ascertaining their condition from time to time, and preventing them from becoming dilapidated or obstructed.” They are not absolved from such duty by waiting to get notice of the fact of obstruction; and if they neglect to perform this duty of “ watchfulness in ascertaining their condition from time to time,” they are liable for any
We are then confronted with the question as to what evidence is necessary to show that this duty to exercise “ watchfulness in ascertaining their condition ” was not performed. Judge Rapallo says in McCarthy v. City of Syracuse (supra) : “ Where the obstruction or dilapidation is an ordinary result of the use of the sewer, which ought to be anticipated and could be guarded against by occasional examination and cleansing, the omission to make such examinations and to keep the sewers clear, is a neglect of duty which renders the city liable.” Thus, the fact that a sewer became obstructed by its ordinary use, there being no evidence that such an obstruction was caused by an unusual or exceptional condition and that such an obstruction was liable to be caused by the gradual accumulation of solids from the sewerage is, it seems to me, sufficient evidence to require from the defendant an explanation as to its watchfulness in ascertaining its condition from time to time and preventing it from becoming obstructed. And the absence of such an explanation would justify the jury in finding that the defendant had been negligent in the performance of this duty. Where the law imposes upon a municipal corporation the duty of exercising a reasonable degree of watchfulness in ascertaining the condition of a sewer from time to time and preventing it from becoming obstructed, it is certainly some evidence that this duty has not been performed when the sewer becomes obstructed without any cause except the ordinary use to which the sewer has been put. From the very nature of things it would be impossible for the plaintiff to prove that the city has not inspected the sewer. It seems to me that the case is analogous to that of a common carrier in which it is held that where an accident is caused by any deficiency in the road itself, the cars, or any portion of the appliances belonging to the company and used in connection with the business, a presumption of negligence on the part of those whose duty it was to see that everything was in order immediately arises, it being extremely unlikely that any defect should exist of so hidden a nature that no degree of skill or care could have foreseen or discovered it. “ If it appears that the mischief has resulted from a defect in some part of the apparatus of the company, the negligence, if any, must have been that of
I can find nothing in the cases to which our attention has been called which is to the contrary. .
In all of the cases where a judgment for the defendant has been sustained, there was evidence to show that the obstruction in the sewer, or the overflow of water, was caused by some exceptional condition, or that some other fact existed which negatived.the presumption of negligence. Thus, in Smith v. Mayor (66 N. Y. 295) it was found as a fact that the overflowing of the sewer and flood
We recognize the doctrine established in all these cases that there is no absolute guaranty or undertaking on the part of a municipal corporation that its streets or other structures shall, at all times and under all circumstances, be in a safe and perfect condition, and that its obligations and duty extend only to the- exercise of reasonable care and vigilance. The question that we have been discussing is one that relates solely to the evidence which would sustain a finding of negligence to perform this duty. But where an appliance like a sewer is under the exclusive management and control of the municipal officers, upon whom there is imposed an active duty of watchfulness and dare to prevent an obstruction which would result in causing damage to abutting property, and without the happening of any extraordinary event which would cause an obstruction, the sewer became obstructed and an abutting owner’s property was injured thereby, it seéms' to me that the case is one from which such a presumption of negligence arises as would call upon the defendant for an explanation; and in the case of a failure of a
It follows that the exceptions should be sustained and the motion for a new trial granted, with costs to the plaintiff to abide the event.
Patterson and McLaughlin, JJ., concurred ; Van Brunt, P. J., and O'Brien, J., dissented.
Dissenting Opinion
I do not see how the city can be held to be liable in this case. The trouble was remedied within a reasonable time after it was discovered, and this seems to be the rule of diligence which is exacted to be observed by the city. It has never yet been held that the city is liable for defects which neither it nor any one else knew anything about, and which it did not create. It cannot be that the city-can be held liable unless it is shown that the defect has existed for such a length of time that notice to the city can be presumed. This seems to be the basis in all cases of the city’s liability. Fo evidence of this kind was offered in this case, and, therefore, the motion should have been denied.
O’Brien, J., concurred.
Exceptions sustained, motion for new trial granted, costs to plaintiff to abide event.