34 N.Y.S. 698 | N.Y. Sup. Ct. | 1895
The Third Avenue Railroad Company operates a cable road in the city of New York, commencing somewhat south of the New York entrance of the Brooklyn bridge and passing along the street immediately opposite the entrance
Upon the trial the plaintiff recovered a verdict, and the defendant now moves for a new trial upon the judge’s minutes. At the close of the case the defendant movéd to dismiss the complaint upon the ground, among others, that there was no evidence of any negligence on its part. This is the only question which will be considered upon this motion.
It appeared that the defendant was authorized to build its tracks, and that the manner in which they were laid was approved by the department of public works of the city of Hew York, and a permit issued for their construction in that
. It was held in the case of Bellinger v. New York Central R. R. Co., 23 N. Y. 42, that one who had legislative authority for constructing a railroad was liable only for such injury as resulted from the want of due skill and care in doing the work. But that case, while it carried the immunity of railroad companies farther than had been before supposed to be the law, and further than was done by the cases in any other country, still held the party erecting the road liable for negligence in the manner of doing the work.
The question then is, was there evidence from which the jury might have found that the defendant was guilty of negligence in leaving a hole of this size in the manhole cover ? Whether or not such a hole was absolutely necessary for the operation of the defendant’s road was disputed, and the jury might, upon the testimony, have found that that manner of construction of the manhole cover, while it was convenient, was not indispensably necessary for the operation of the" defendant’s road, and might have been replaced by some other construction in which there would have been no hole of this kind. Upon this motion, it must be presumed that the jury did so find.
The location of this manhole cover was immediately opposite the entrance to the Brooklyn bridge, a place which at all hours of the day is thickly thronged with people, and over which, morning and evening, as many people pass as over any other part of the city of Hew York. It was made to appear
In considering this question, it must be borne in mind that the defect alleged is not a failure to keep in repair, but one of original construction. If these manhole covers had been constructed in some other way, and by long use the holes had. become worn in them, it might fairly be insisted that because the holes had not been put in the covers in the first place, they were not thought proper, and their existence created a defect which it was negligence to permit. This consideration takes this case out of the authority of several cases cited by the plaintiff, where a defect had come to exist because the construction was out of repair and the defect was the direct cause of the accident. In such a case as that presumably the original construction was proper and safe, and the fact that, it was permitted to get out of repair and develop a defect which caused the accident is, of itself, evidence of negligence.
Such were the cases of Fash v. Third Avenue Railroad Company. 1 Daly, 148 ; Rockwell v. Third Avenue Railroad Company, 64 Barb. 438. So, also, this case is not to be governed by those in which the precise construction was prescribed by the statute, as in Humbert v. Brooklyn Cable Co., 12 N. Y. St. Repr. 172. In that case the law prescribed that the slot for the cable should be three-quarters of an inch wide. That dimension of the slot having been prescribed by the statute, it was, by force of the statute, the proper and safe
Heither is this case like those in which the rail of the track was permitted to project above the street, without any planking upon the side of it, when it was made to appear that to put down such planking was the ordinary and usual mode of constructing a railroad track upon a highway, as was the case in Wasmer v. D., L. & W. R. R. Co., 80 N. Y. 212.
In this case, as has been said, the hole was made in the cover as it was originally constructed, hnd the question then presents itself whether this original construction was unsafe, or whether the highway, as thus restored, was left' in an unsafe condition.
The duty of a railroad corporation which interferes with a highway is to use" reasonable care to restore it so as not to unnecessarily interfere with its usefulness. But the corporation is not called upon to restore it to such condition as under no circumstances can harm come to one who uses it. Its duty is simply to use reasonable care in that direction. The corporation is entitled in building its road, in the first place, to erect in the highway whatever is absolutely necessary to enable it to operate the road, and if such construction is made with proper care and skill, however inconvenient it may be to the rest of the community, it is damnunn cJbsgue ipgwia. Such is 'the plain holding of the case of Bellinger v. N. Y. Cent. R. R. Co., supra, as interpreted by the long line of cases in which it has been considered. But although that which is dqne by way of constructing the road is not absolutely essential, /but only adopted as a more convenient appurtenance,' instead of some other mode of construction, which would be equally useful, it cannot be said that it is negligence to adopt that mode, unless some danger might have been apprehended from its use. One is not guilty of negligence unless he omits to do something which a' reasonable man Avould do, or does something which a reasonable man would not do. Davis v.
Winslow, 51 Hun, 264.
In restoring the highway it is the duty of the corporation to take into consideration the conditions that exist in that part of the highway where it has occasion to build its road; the extent of its use; the manner in which the road is to be built along or upon it; what is likely to happen in the place where it is to be built; the effect which any particular mode of construction will have upon its-use; the danger to which the public will be exposed by the use of that mode of construction ; how far a due regard for their safety will permit such a mode of construction to be adopted, and whether, upon the whole, such a mode of construction as is adopted will be sufficient for the purposes for which the highway is to be used. One element to be taken into consideration is whether any accident is likely to happen from the particular mode of construction, and if the mode is such that no accident is likely to occur from it, it is not negligence to adopt it. In the case of Blyth v. Birmingham Water Works Co., 11 Exch. 781, it is said that negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do; and it is also said that a reasonable man would act with reference to ordinary circumstances. In that case, it having appeared that the act which was complained of as negligence was proper, having in view the conditions which usually existed, the court held that the verdict should have been ordered for the defendant.
The opinion in that case is a short one, but it refers, among other cases, to the case of Commonwealth v. Pierce, 138 Mass. 168, in which, at pages 179 and 180, is found a discussion of the subject which shows the views of the Supreme Court of Massachusetts.
It this state it seems to be settled that any mode of construction not absolutely dangerous which has been in operation for a long time, and has uniformly proved adequate and safe,, may be continued in use without the imputation of negligence. Ryan v. Manhattan R. R. Co., 121 N. Y. 126; Dougan v. Champlain Trans. Co., 56 id. 1; Loftus v. Union Ferry Co.,. 84 id. 455 ; Cleveland v. N. J. Steamboat Co., 125 id. 299. In all these cases the rule seems to have been adopted that if the-accident was one which would not reasonably have been anticipated, and which had never happened before, negligence cannot be predicated of the existence of the condition which' brought about the injury.
The same rule has been adopted in Massachusetts, and by the Court, of Exchequer in England, as appears from the cases cited above.
Applying this rule, it nuist be said that the defendant is not guilty of negligence in adopting this construction of the manhole cover, unless it is made to appear that injury to persons-using the highway might reasonably be anticipated from such a mode of construction.
It is a more serious question whether or not it should have been submitted to the jury to decide if such an accident might have been reasonably anticipated, or if that matter should have been disposed of as a question of law by the court.
In each one of the cases cited above the' question was dis
In Gould v. Slater Woolen Co. the court at the trial ordered a verdict for the defendant for the reason that the facts which appeared did not warrant the finding of negligence, and the exceptions to that ruling were overruled by the Supreme Court.
In the case of Ryan v. Manhattan R. R. Co., 121 N. Y. 126, the plaintiff was hurt by stepping between the car and the platform at an elevated railroad station. Because of a curve in the platform there had been left a space of about eight inches between it and the car step, through wlfich space the plaintiff fell. It appeared that this space had been there ever since the construction of the elevated railroad; that during all that time it had proved to be safe, because thousands and thousands of persons had stepped over it without any danger, and that the plaintiff was the only person' who ever had been injured by it. The Court of Appeals, reversing a judgment for the plaintiff, held that those facts showed that there was no negligence in permitting such an opening to exist and that the plaintiff should have been nonsuited.
The same thing was held in the case of Fox v. Mayor, 70 Hun, 181, upon substantially the same state of facts. The rule there laid down was, that such an opening, over which many thousands of persons had daily passed without inconvenience, was not negligence upon which a recovery could be based.
The necessary inference from these cases is, that unless it has been made to appear that the defect was one from which a reasonable man might anticipate that injury might occur, the fact that the construction complained of had proved to be safe and convenient in practice, and that no other accident had ever happened because of it, requires the court to liold that there was no negligence and to dispose of it as a question of law. Eegligence in such a case cannot be inferred from
Motion granted.