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Tubesing v. City of Buffalo

51 A.D. 14 Court N.Y. App. Div. English

Delivered by Adams, P. J. :

Contents

Majority

p. 14
Sarah Tubesing, Respondent, v. The City of Buffalo, Appellant.

Headnote

Negligence — a pedestrian stubbing her toe against a trap door leading to a mult under a sidewalk—the city is not liable —power of a municipality to authorize such a door— presumption from lapse of time that it has done so.
A municipal corporation may authorize a limited portion of the sidewalk in front of stores and buildings, occupied for business purposes, to be perma- ■ nently devoted to such contrivances as doors, grates and other similar ojien - • ings to cellars and underground vaults which are convenient and beneficial to the enjoyment of the adjacent premises.
A municipal corporation is not liable for injuries sustained by a person, who, while walking upon one of its sidewalks, stubs her toe against the projection formed by the overlapping edges of trap doors, located in a grating in the sidewalk immediately in front of a building and designed to afford access to a cellar beneath the walk, where it appears that the surface of the doors was only an inch and a quarter above the surface of the sidewalk, and that the top of the projection was only three-quarters of an inch higher than the surface of the doors, and that between the outer edges of the doors and the curb there was a perfectly smooth and unobstructed passageway of nearly nine feet, and that this condition had existed for upwards of five years, during which time no other similar accident had occurred.
Semble, that, in view of. the long-continued use of the doors, it might be assumed that they ‘were constructed and maintained pursuant to proper municipal permission.
Appeal by the defendant, The City of .Buffalo, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 27th day of June, 1899, upon the verdict of a jury for $844, and also from an order entered in said clerk’s office on the 27tlr day of June, 1899, denying the defendant’s motion for a new trial made upon the minutes.
On the 2d day of December, 1897, the plaintiff- had occasion to go into the store of one John Hamilton, situate upon the north sidd of Eagle street in the city of Buffalo. After making some purchase she left the store and proceeded a short distance upon the sidewalk when, remembering that she had forgotten a parcel,' she turned suddenly with the intention of returning to the store to obtain the same, and. as she did so stubbed her foot against the center of a trap door located- near the westerly side of the building and fell to the sidewalk with such violence as to fracture the cap -of her- left knee.
p. 15
The sidewalk in front of the Hamilton store is twelve feet in width' and consists of large flagstones. Extending across the entire front of the building and immediately adjoining the same is a skylight grating-three feet six and one-half inches in width which is made of glass and iron. This grating is set in an iron frame three and one-half inches wide, and both grating and frame are nearly level with the surface of the. walk. At each end of the grating are trap doors which can be opened to permit the transfer of goods to and from the cellar of the Hamilton building. These doors are three feet three inches in length and four feet eight and one-half inches in width. The edge of one of the doors is raised in such a manner as to lap over the other when both are closed, thus covering the joint and forming what is known as an “ architrave.” The top of this architrave is about three-quarters of an inch higher than the surface of the doors, which are an inch and a quarter above, the surface of the sidewalk, and the hinges by-which the doors are attached to the frame project to nearly the same height as the architrave. A handle is ■ inserted in the south end of one of the doors, and this handle is two and oné-quarter inches higher than the walk.
Outside. of the iron grating the flag walk lias a width of eight feet and eight inches, and is perfectly smooth, but at the time the plaintiff received her injury she was upon or near the grating- and struck her foot against the architrave. The situation as. above described had existed for a period of at least five years prior to the time the plaintiff received the injuries complained of, and it does not.appear that any other similar accident had ever occurred there.
Henry W. Killeen and W. H OCddeback, for the appellant.
Charles L. Feldman, for the respondent.

Upon the foregoing state of facts, as to which there is no controversy whatever, we think it was error to submit the question of defendant’s negligence to the jury.

In reaching this conclusion we are by no means unmindful of the rule which requires municipal corporations to exercise a reasonable degree of care to keep their walks and streets, unobstructed, and in such condition that travelers may pass- over them without incurring

p. 16
the risk of personal injury, but this rule does not absolutely inhibit ■ such a corporation from permitting certain portions of its walks and - streets to be devoted to such purposes as are necessary and useful to the occupants of abutting- premises, provided an ample and unobstructed passageway is left for the purposes of the public. (Dougherty v. Village of Horseheads, 159 N. Y. 154 .)

Thus, hydrants, hitching posts, shade trees, grass plots, guarded' . and protected by curbing and stones, have each been held to serve a useful public purpose, consistent, with the object for which streets are primarily designed, although in a certain sense and to a limited ■ extent they may obstruct the full and free passage of a street. (Ring v. City of Cohoes, 77 N. Y. 83 ; Dubois v. City of Kingston, 102 id. 219 ; Hubbell v. City of Yonkers, 104 id. 434; Hunt v. Mayor, 109 id. 134.)

Furthermore, the owner of a building abutting upon a street may temporarily use and obstruct the sidewalk in front of his premises ■ to any reasonable extent for such purposes as are incidental to the ".business in which he is engaged ; and it is perfectly competent for a ■ municipality to authorize a limited portion- of the sidewalks in front - of stores and buildings occupied for business purposes to be permanently devoted to such contrivances as doors, grates and other like ■ openings to cellars and underground vaults where the same are convenient and beneficial to the enjoyment of the adjacent premises. (Jorgensen v. Squires, 144 N. Y. 280 .)

This privilege.is one which by universal custom has been accorded "to persons engaged in commercial pursuits in populous cities where the surroundings are such as to render the same an absolute neces-sity. Indeed, it is doubtful1 if the commerce of such a city as Buffalo could be conveniently or profitably conducted unless such infringements upon the technical rights of pedestrians were, to a reasonable -extent, permitted.

In the present- instance it' seems that the doors which occasioned "the plaintiff’s injury were a useful and convenient adjunct to the premises in front of which they were located. They served the -double purpose of a skylight and a means of access to the cellar or vault beneath the walk, and, inasmuch as they liad been in use for "nearly six years, it may be assumed that they were constructed and ¿-maintained pursuant to proper municipal permission. (Jennings v.

p. 17
Van Schaick, 108 N. Y. 530 ; Babbage v. Powers, 130 id. 281; Jorgensen v. Squires, supr a.)

This being the case, we fail to see wherein any liability attaches .to the defendant by reason of the accident which befell the plaintiff. But, over and beyond the reasons already assigned, we think it cannot with any propriety be held that the obstruction complained •of was of such a character as to impose liability upon the defendant for its failure to remove the same.

A municipality does not insure the absolute safety of its streets .and walks. On the contrary, the obligation which rests upon it is ■ fulfilled when it exercises a reasonable degree of care to keep the •same free and unobstructed. Moreover, it is not bound to take notice of and remedy every slight elevation and depression or inequality in its sidewalks; nor is it chargeable with negligence when an accident which, according to common experience was not likely to happen, does occur by reason of some such defect. (Beltz v. City of Yonkers, 148 N. Y. 67 ; McCarty v. City of Lockport, 13 App. Div. 494 .)

The doors in question were elevated at the most but two inches above the surface of the walk; they were placed in close proximity' to the front of the building; between their outer edges and the •curb there was a perfectly smooth and unobstructed passageway of nearly nine feet, and this condition of things had existed for upwards of five years, during which time presumably thousands of people had walked over whatever obstruction they created without the slightest inconvenience. In short, the doors and their appliances were just such impedimenta as are common to the business •quarters of every large city, and to hold that, under circumstances such as this case discloses, their presence in the walk constitued actionable negligence upon the part of the municipality, would require an extension of the doctrine contended for beyond the point to which this court is prepared to go. It follows that the judgment and order appealed from should be reversed.

All concurred.

Judgment and order reversed and a new trial ordered, with ■costs to the appellant to abide the event.

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