Boston v. Abraham — 91 A.D. 417

Majority

p. 417

John J. Boston, Respondent, v. Abraham Abraham and Others, Composing the Firm of Abraham & Straus, Appellants.

Headnote

_Negligence— injury to a workman engaged in laying a water main in a street from a horse being driven into a ditch —responsibility of an employee for a common-law nuisance created by the ditch —judicial notice of ordinances.

In an action brought to recover damages for personal injuries sustained by the plaintiff, it appeared that the plaintiff was in the employ of a contractor, who was engaged in laying a water main in a city street, and that in the course of the work two holes had been dug in the street, one on the north side and one on the south side. The holes were two feet by three feet and were four feet in depth. Dirt was piled up around the holes leaving a narrow passage between the holes and the curbs, but affording a clear way of ten or twelve feet between the holes. While the plaintiff was working in one of the holes, a horse and wagon belonging to the defendants was, in broad daylight, driven into the trench and the plaintiff was injured. It did not appear that there was any oi'dinance governing the opening of streets or that a permit was necessary for that purpose.

Held, that a judgment entered upon a verdict in favor of the plaintiff should be affirmed;

That the jury might properly find that these holes did not constitute a common-law nuisance, even though it be assumed that the plaintiff, á mere employee, was responsible for them;

That the court would not take judicial notice of private acts such as ordinances.

Quaere, Whether, if the violation of an ordinance requiring the procuring of a permit for the opening of a street were proved, the plaintiff, an employee, who might reasonably presume that his employer had procured the necessary permit, would be deprived of his right of action.

Appeal by the defendants, Abraham Abraham and others, composing the firm of Abraham & Straus, from a judgment of the

p. 418

Supreme Court in favor of the plaintiff, yntered in the office of the clerk of-the county of Kings on the 20th day of April, 1903, upon the.verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 25th day of April, 1903, denying the defendants’ motion for a new trial made upon the minutes.

H. Snowden Marshall, for the appellants.

Martin P. Lynch, for the respondent.

The plaintiff alleges that on the 14th day of September, 1901, while he was lawfully engaged in a trench laying a water main on Twelfth street, between Sixth and Seventh avenues, in Brooklyn, a horse and wagon' belonging to the defendants was carelessly and negligently driven into the said trench and on the plaintiff, causing the injuries complained of. The answer made a general denial of the allegations of negligence. Upon the trial - two theories were presented, one that the defendants drove the horse into this trench, though haying special warning, and the other that the horse, in passing near the excavation, shied, throwing his rear feet into the trench, doing the injuries for which the plaintiff seeks recovery. After a careful charge on the part of the learned trial justice the jury found in favor of the plaintiff, and from the judgment entered, and the order denying a motion for a new trial, the defendants appeal.

The plaintiff having alleged in his complaint that he was lawfully in this trench, the defendants Urge that the learned trial justice erred in the theory on which the case was sent to the. jury. They urge that the digging of this trench, for the purpose of making a water connection, in the absence of a permit on the part of the public authorities, constituted a nuisance, and that the defendants, in the absence of willful or wanton injury, were not liable for the accident. This question was presented by the defendants’ requests to charge, and is the basis of practically all of the objections called to our attention. Many authorities are cited upon the proposition that a public nuisance resulting in injury to one lawfully in the highway gives a cause of action to the, party so injured, with all of which we fully agree, but the question here presented is not an injury to the defendants or their servants, but an injury to the

p. 419

plaintiff, who was in thv employ of one John J. Flaherty, engaged in relaying a water main in Twelfth street. The plaintiff at the time of .the injury was engaged in working in a hole which had been dug on the south side of Twelfth street, in front of No. 336. The dimensions of this hole were two feet by about three feet, and were four feet in depth. A hole of the same dimensions, presumably neeéssary in the work, had been dug on the north side of the street, leaving a passageway of about twelve feet between them. The dirt which had been thrown out of these holes was piled up around them, largely on the sides of the holes next to the curb, leaving but a narrow passage between the holes and the curbs,, but affording a clear way of ten or twelve feet between the holes-The laying or relaying of water mains in a populous city is a work of necessity for the convenience and safety of the public, as well as for the convenience of individuals, and the jury might properly find that these temporary excavations for this lawful purpose did not constitute a common-law nuisance, even though it be assumed that the plaintiff, a mere employe, was responsible for the same. (Tinker v. N. Y., Ontario & Western R. Co., 157 N. Y. 312 , 319, and authorities there cited.) There Was no reason why the defendants, exercising reasonable care, particularly in view of the warning they had received, could not have driven between these two holes with perfect safety, and avoided doing the plaintiff an injury. It is true, of course, that violating an ordinance affords some evidence of negligence on the part of the person violating the same, but there is no evidence in this case of any ordinance governing the opening of streets, or showing that a permit was necessary for this purpose, and it is a well-established principle of law that State courts of general jurisdiction will not take judicial notice of private acts such as ordinances. (15 Ency. of Pl. & Pr. 425 ; Porter v. Waring, 69 N. Y. 250 , 254, 255.) When the plaintiff had established a state of facts from which the jury might find that he was not guilty of any common-law nuisance, he had made a case entitling him to go to the jury, assuming that he had evidence to support the allegation of negligence on the part of the defendants,, and lack of contributory negligence oh his part, and in the absence of an ordinance appearing in the record, we cannot assume that he was guilty of any violation of law.

p. 420

We do not mean to decide that the plaintiff, an employee, who might reasonably presume that his employer had the necessary permit, would be deprived of his right of action even were an ordinance proved, as it is not necessary in this case to determine any such point. The jury had a right to find from the evidence that the plaintiff was lawfully employed in the highway; that he was in the exercise.of reasonable care, and that the defendants were guilty •of negligence in driving into this hole in broad daylight, and they •having found in favor of the plaintiff, we see no reason for disturbing the judgment, although we might, acting as jurors, have been •disposed to give a smaller verdict.

The judgment and order appealed from should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.-

Cases cited

Tinker v. New York, Ontario & Western Railway Co. 157 N. Y. 312 N.Y. 1898-11-22 at 319 p. 419
Porter v. Waring 69 N. Y. 250 N.Y. 1877-04-10 at 254, 255 p. 419