Jewhurst v. City of Syracuse

The place where the accident occurred was outside of the actual limits of Tallman street. That street had been legally opened for some years of the width of sixty feet, and the accident happened two or three feet north of its northern boundary, the street running east and west. There had never been any such dedication and acceptance, on the part of the owners and the city authorities of that portion of land where the accident happened, as to make it any portion of the public street over which the city had jurisdiction. It had not built the sidewalk or any portion thereof, and never assiuned jurisdiction over this piece of land. The city had no legal right through its officers to go upon the premises where the accident happened, for it did not own the same.

Nor is there anything in the case of Beck v. Carter ( 68 N. Y. 283 ), which aids the plaintiff. In that case defendant’s testator had made an excavation about ten feet from the line of an alley which, finder the facts in that case, the court held was to be considered as part of the public highway, and the plaintiff passing along the alley on a dark night fell into the excavation and was injured. The defendant was held liable for making an excavation so near to the highway as to make its use dangerous to one while exercising ordinary care. The action was against the person who made the excavation and not against the municipalty.

The case is also unlike that of Sewell v. City of Cohoes, ( 75 N. Y. 45 ). The officers of the city had in that case treated a piece of land within the city limits as a public street, and under and in pursuance of a resolution of the common council which fixed the grade, the land had been graded and paved as a street by the city authorities, and was used and traveled over as a public highway. The land had been in fact actually appropriated by the city and it had assumed the burden and duty of keeping it in a safe condition like any other of the public streets of the city. The court held that under such circumstances the city was estopped from setting up a lack of title to the street, or that it was not a legal highway.

But there is a class of cases, of which Cogswell v. Inhabitants of Lexington ( 4 Cush. 307 ), Hayden v. Attleborough ( 7 Gray, 338 ), Alger v. City of Lowell ( 3 Allen, 405 ), and a number of others are examples, where a city has been held hable for a failure to guard the boundary of a street under

So in the case of Hayden v. Attleborough (supra), where the limits of the higway were not indicated by any visible objects and there was nothing to show a person driving thereon in the evening that the course he was pursuing was not within the way intended for public travel, the defendant was held liable for an injury caused to the plaintiff by being thrown from a wagon at night into a cellar which had been dug two years before, although the cellar was outside of the limits of the road, and the plaintiff at the time of the accident was outside of such limits. But there was evidence that the owner of the land, at the place of the accident, had some years before thrown it open for travel and set back his fence, and such space so thrown open was as smooth as the highway and in good order to-travel upon with horses and carriages, and before the digging of the cellar much of the travel had been accustomed to pass over the place where the cellar was dug.

We have not had our attention called to any case in this-state precisely similar in its facts, but the principle of several of the cases decided here sustains this result. Thus in Saulsbury v. Village of Ithaca ( 94 N. Y. 27 ), although the village authorities had not built the plank-walk and had not even decided that a sidewalk should be built there, yet the court held that the duty rested upon the village to keep a, reasonably safe highway, and if the sidewalk were dangerous, no matter by whom built, the village owed a duty to the public to take such steps in the matter as would remove the--danger. It is true the sidewalk in question in that case was within the limits of the street, or in other words the cause of the dangerous condition of the street lay within its limits, while in the case at bar the cause of the danger in the street.

We are unable to perceive why the duty to keep the street reasonably safe does not exist in the one case just as much as the other; the only difference being that where the cause of the danger lies within the limits of the street, the corporation has the right to go upon the spot and there remedy the defect, while in such, a case as this the corporation cannot go outside its limits, but is confined to a remedy within them. In Veeder v. Village of Little Falls (supra), it was claimed that the duty of the defendant was to put up a guard on its own land, and near the property of the state, so as to prevent any one from running into danger existing on such state property. But the court said it would not be under any such obligation if the barrier which was thus erected would prove more of a danger than that which was to be avoided by its erection; and it was held error to have refused the request of defendant to submit to the jury that question with a direction that if the erection would constitute a greater danger than the one sought to be avoided, the corporation was not negligent in failing to erect it. Yet, in that case, the necessity of doing something on its own'land as a general rule to avoid a danger on the land of another, very near to the street and apparently being part thereof, was tacitly recognized as resting upon the municipality, and the excuse for not doing it which was alleged, was held a proper fact to be submitted to the jury.

The referee in this case found as a fact that for a year prior to and at the time of the happening of the accident the sidewalk, for want of repair, had become and was in an unsafe and dangerous condition, of which the defendant had due notice. He further found that the sidewalk was constructed of two strips of twelve-inch plank with one foot space between them to be filled up, and the planks ran lengthwise of the street and rested upon string pieces running across. The plank in the sidewalk, by the breaking of which the plaintiff was injured, was on the north side of the sidewalk and outside of the exterior line of the street, while the adjacent plank on the

Upon these findings of the referee, we think, so far as this-, question is concerned, a cause of action is made out. Generally the cause which rendered the highway dangerous has. been, it will be observed, an excavation or an obstruction near it, and the question has been mooted whether the principle can be applied to such a case as this where the defect was outside of the limits of the highway and consisted only in the dangerous condition of the plank there laid in the manner above described. It is urged that such a danger is not within the principle, for it is so slight in degree that it cannot fairly be claimed to be negligence to fail to discover the defect, or if discovered, to guard the true limits of the street from such plank by a railing or some other structure. We do not see how any such distinction can be maintained. It is a question of fact and not of law as to the dangerous condition of the. street. Under the finding of the referee this planking, outside of the street, was and had been for a year in a dangerous, condition, and was so known to be by the city authorities. The walk was rendered dangerous because it was out of repair,, and danger from such a source may be quite as great as that arising from an excavation or an obstruction in the road near the highway. I do not see how it can be -said as matter of law that the city might be responsible for damages arising-from the existence of an excavation or an obstruction, such as a post, and yet free from such liability arising from a sidewalk rendered dangerous from being out of repair. If the side

It has been also argued that the plaintiff herein voluntarily chose the plank which was outside of the street Emits and was not injured either while within the true Emits of the street or while passing from such Emits to a point which was beyond, but that she had fully and safely and voluntarily passed outside of and beyond the Emits of the street and was pursuing her way along the private property of adjacent owners when she received the injury and hence she 'ought not to be permitted to recover. The argument might hold good and furnish a defense if the further fact were found, viz., that at this time the plaintiff knew she was outside the Emits of the street and had knowingly left those Emits for her own convenience. The case cited by defendant’s counsel of Tisdale v. Inhabitants of Norton ( 8 Met. 388 ), is of such a character. The highway was out of repair and in a dangerous condition, and the plaintiff knowingly and for the purpose of avoiding the danger existing in the highway, turned out .therefrom and went about four .rods and there sustained the injury for which he brought suit. The court held his action could not be maintained because it did not happen in the highway from which he had knowingly departed, and the fact that he left it because it was dangerous did not make the town hable for injuries sustained by him while he was thus knowingly and voluntarily outside of the highway. But in this case the findings of the referee, already set out fully, we think, answer the argument above stated.

The other case cited by the defendant’s counsel (Rowell v. City of Lowell, 7 Gray, 100 ) does not touch this point. There

Where there is no visible boundary to the line of the street and a portion of the road-way traveled on is so near the actual line (although really outside thereof), as to induce the belief in any one exercising reasonable care that he is within such line, if such portion is for any reason rendered dangerous-for travel and the city has notice thereof in due time, and such danger can be remedied by the exercise of reasonable care, either by the erection of a guard or railing along the true limits of the street, or in some other way, and the city neglects to guard it, we see no reason why it should not be held liable to one who is injured outside of such limits, under such circumstances, he being himself free from any neglect contributing to the injury.

The judgment is right and should be affirmed, with costs.

' All concur, except Rugeb, Oh. J., not voting.

Judgment affirmed.