| N.Y. Sup. Ct. | Jan 2, 1866
It is not claimed by the defendant but that the plaintiff broke his leg by falling into a post-hole, dug on or near the defendant’s land, in the village of, St. Johnsville. The plaintiff’s witness, Herdman, testifies that he (the plaintiff) fell into the post-hole at the intersection of the line between the Shaver and Saunders’ lots with the street. Pour witnesses on the part of the defence testify that the corner post-hole was not dug until the Monday after the injury to the defendant. The witnesses, on the part of the plaintiff, describe the hole, into which the plaintiff fell,
The next question of fact found by the referee is, that the defendant did not take any precautions to prevent persons, travelling in the street, from falling into the hole thus dug by him within it. On this point there is no conflict of evidence, nor is it claimed that any precaution was taken by the defendant. It was also found, that the plaintiff was not guilty of negligence, and hence negligence on his part did not contribute to the injury. This finding presents the only important question in the •case ; and I am not aware that the precise question has ever been passed upon by any court in this country or in England ; at least I have not been able to find any decision on the point, in the books.
It appears by the evidence, that the street in question was laid out by the commissioners of highways three rods wide. It had been fenced on both sides, in front of the defendant’s premises, but the fence on the defendant’ s side had been removed, or destroyed, some time before the injury.. On the west side of the street a sidewalk had been constructed, which those living on both
In this case the defendant did not own the land on which the street was laid. His lot is bounded by the easterly line, of the street, and hence he had no greater right to the land within the boundaries of the street than any other citizen. .Ho person, whether he be owner or not, has the light to obstruct a highway, either by placing obstructions, or making excavations, therein. Such obstructions are public nuisances, and may be abated by any person injured thereby. And the person making such obstruction is liable to the injured party for such damages as may be sustained by reason thereof. (Ang. on Highways, §§ 285, 298, 300.) It being the duty of the public officers charged with the care of the highways, to keep the streets of the village of St. Johns-ville free from obstructions which could interfere with the safe passage of persons thereon, and teams over the same, the plaintiff had the right to rely on the performance of this duty, and to pass along any part of the street in the day or night time, in the faith that he would find no 'obstructions therein. By attempting to travel the streets in the night, he was bound -to use care and caution commensurate with the danger incurred; but •he was not bound to anticipate that he would encounter excavations or embankments without having some notice thereof by lights or other precautions taken for his protection. The defendant had no right to dig post-holes in the highway. But if he did, it was his duty to place lights, so as to warn travellers of the danger, or to so cover them as to prevent injury by falling into them. There was a sidewalk on the west side of the street, over which the plaintiff 'might have passed to Herdman’s house. But it" does not appear that he knew of such walk, or knew that he incurred any risk in travelling on the east side; so that I am unable to discover any
Mullin, Morgan and Bacon, Justices. Decision affirmed by Court of Appeals. Case very meagerly reported, however, in 36 Sow. 136, and 3 Keyes, 323.]
It is time that persons living on streets and highways were taught that they have not the right to dig trenches and place obstructions therein, and that they are liable for all damages resulting therefrom. While,- in the country, travellers may be bound to keep the travelled part of the road, in cities and towns they are entitled to the uninterrupted use of the streets at all times, subject to the right of use by individuals, temporarily, for the purposes of business, and to make excavations therein, against danger from which ad reasonable precautions must be taken, by the use of guards or lights, as the nature of the case may require. Digging post-holes in a street is a public nuisance, although in a part of it not used, nor susceptible of use, by the public by reason of natural obstructions therein. (Commonwealth v. King, 13 Metc. 115.)
Where the act done is a nuisance, the defendant’s liability follows, as a matter of course, if the plaintiff is free from negligence. That none is proved, I am well persuaded.
. I am therefore of the opinion that the judgment should ■ be affirmed. '