Gilmartin v. Mayor of New York

Headnote

If a servant does, without special orders, an act of such a nature that he is justified in doing it, as between him and his master, without an express order, the master is liable for damages sustained by an individual in consequence of the act being done in an unskillful manner.

‘Jhus where the defendants’ gardener, in attempting to take down a liberty pole, in a public park, which had become dangerous, did it so unskillfully that it was precipitated against a telegraph pole which was thereby broken off and cast against the plaintiff’s daughter, causing her death; Held that the defendants were liable, although the gardener had received no express orders to remove the pole, from the officer having charge of ,the public parks.

APPEAL by the defendants from a judgment entered at a special term on the verdict of a jury.

The action was brought to recover damages for loss of services, and expenses, occasioned by the death of the plaintiff’s daughter, a minor, under the following circum

stances: She was passing along Broadway, on the 27th of June, 1865, at the time when a pole or flag-staff standing in the city hall park was being cut or pulled down. It was claimed by the plaintiff that several of the officers of the defendants, who were charged with the care of the park, were present and assisted in taking down the pole. The pole fell against the telegraph wire, and thereby a telegraph pole, situated at the corner of Murray street and Broadway, was pulled over and fell upon her, causing injury, of which she afterward died. The testimony was that the pole was cut down by men and boys, after working hours; that Michael Reilly, a gardener, employed by the defendants, had “ something to do with it.” That the keeper of the park, Donohue, had not received or given any order for the removal of the pole. That no order for its removal had been given by the superintendent of lands and places, whose duty it would have been to have ordered such removal, if it had been desired. That it was no part of the duty of Beilly, the gardener, to undertake the removal of the pole. It also appears that the telegraph pole was maintained and controlled hy the Metropolitan Police Department; that it was rotten at the base where it broke off. The action was tried by a jury. It was admitted by the defendants’ counsel, on the trial, that the defendants, on the 27th day of June, 1865, were the owners of the city hall park, in the city of Hew York, and in possession thereof. And it was consented that the plaintiff might read in evidence, on his behalf, the ordinances of the defendants, as published by them, relevant to the issues herein; subject, however, to any objections the defendants might make as to relevancy or otherwise.

The plaintiff’s counsel then read in evidence an extract from the ordinances of the city corporation, specifying the duties of the superintendent of public parks and places, passed May 20, 1849, (chapter 5, section 29,) as follows: “ An ordinance organizing the departments of the munici

pal government of the city of Yew York, and prescribing their powers and duties. (Approved May 20, 1849.)

Chapter Y, section 29. This bureau, the chief officer of which shall be called the superintendent of lands and places, is charged with the duty of inspecting the condition of, and superintending the public grounds and places belonging to the corporation.

§ 71. He shall exercise a constant inspection and supervision of the public grounds and parks, and of keeping the same in proper order, and shall, from time to time, suggest and report to the street commissioner such improvements therein as may be necessary and proper, with estimate of the expense thereof.

§ 76. May appoint a foreman (amended January 7, 1865) and two keepers of the city hall park at three dollars per day, and may employ, from time to time, such additional labor as may be necessary to keep the public grounds and parks in proper order.” (Revised Ordinances, approved December 19, 1862.)

When the plaintiff rested, the defendants’ counsel moved to dismiss the complaint, upon the -ground that the action was brought to recover against the corporation for the negligence of its officers, employees or agents, in negligently performing its duty in removing from the premises the stick of timber or pole theretofore erected; and that to establish the right of the plaintiff to recover, it must be shown affirmatively that this was' done by one of the employees or agents of the city government; and that there was no testimony to that effect, except that of Mr. Donohue, the keeper of the city hall park, who stated that one Edward Reilly, the gardener, was at or about this pole; that in the same testimony it was shown that he, Donohue, was duly appointed by the street commissioner, keeper of the city hall park, and that he had men in his charge to take care of the grounds, and that no order had been received by him from Mr. Ward, the superintendent

of lands and places, to remove this liberty pole, nor had he, Donohue, given any order of that kind to any person who was under his charge. The motion was denied, and the defendants excepted.

The defendants also requested the court to charge that if the jury believed the telegraph pole would not have fallen except from the fact of its being unsound, then the plaintiff could not recover. The court denied the request, and exception was taken. The defendants further requested the court to charge that the cutting down a liberty pole was not a repair such as Reilly might, without any specific direction, cause to be done. The court denied the request, and exception was taken. The jury found a verdict in favor of the plaintiff, for $ 1100.