Hume v. Mayor of New York — 47 N.Y. 639

Majority

p. 639

William H. Hume, Respondent, v. The Mayor, etc., of the City of New York, Appellants. Agnes E. Hays, Executrix, etc., Respondent, v. The Same, Appellants.

Headnote

The authorities of a city are not bound to be experts or skilled in mechanics and architecture, and can only be held to the extent of reasonable intelligence, and ordinary care and prudence.

A municipal corporation is not liable for injuries caused to individuals by obstructions on the highway not placed there by its own officials, or by authority of the city government, until after actual notice of their existence, or until by reason of the lapse of time it should have had knowledge, and therefore actual notice may be presumed.

Plaintiff was injured by the fall of a wooden awning over a sidewalk upon one of defendants’ streets. The awning was constructed in the usual manner, by competent mechanics, with timbers of proper form and size. Pour months prior to the accident the awning had been injured by a fire engine running against it. It was repaired by a competent mechanic, who did what he supposed necessary to make it safe. A day or two before the accident there had been an unusually heavy fall of snow, and a heavy body of it remained upon the awning. That part of the awning which had been repaired gave way. Defendants requested the court to submit to the jury in substance the question whether the fall of the awning was not occasioned by a secret defect, not discoverable, resulting from the injury to it and by the unusual quantity of snow upon it, and to charge, if the jury so found, defendants were entitled to a verdict. This the judge declined to do.

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Held, error, that whatever may he the extent and measure of the liabilities of the city government, these were questions of fact which should have been submitted to the jury^[1]

(Argued February 21, 1872;

decided March 26, 1872.)

Appeal from a judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiff, entered upon verdict, and affirming order denying motion for new trial.

These actions were brought to recover damages from the defendants for injuries alleged to have been caused to the plaintiff in the first of said actions, and to the plaintiff’s testator in the second of said actions, by the falling of a wooden awning at. the north-east corner of Fourth avenue and One Hundred and Twenty-fifth street, in the city of Hew York, on the 22d day of February, 1867. The defendants entered into a stipulation, by which they agreed that “ whatever verdict shall be rendered in favor of or against the plaintiff in the first of said above entitled actions shall also be rendered in favor of or against the said Agnes E. Hays, as such executrix, and as plaintiff in the second of said above entitled actions, except in case such verdict shall be in favor of the plaintiff, and shall exceed the sum of $5,000, in which case the verdict to be rendered in favor of the said Agnes E. Hays, as such executrix, and as plaintiff in the second of said above entitled actions, shall be for the sum of $5,000, and judgment shall be rendered according to such verdict, together with costs, in favor of or against the said Agnes E. Hays, as such executrix and plaintiff in the second of said above entitled actions.”

The Hume case was brought to trial before Mr. Justice Brady and a jury, on the 24th day of October, 1870, and the plaintiff, William H. Hume, recovered a verdict against the defendants for $12,000 damages, and judgment was duly

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entered thereon. The Hays case was thereupon brought to trial before„Hr. Justice Beady and a jury on the 26th day of October, 1870, and in pursuance of the above stipulation, and on the record in the Hume case, a verdict was duly rendered and entered against the defendants, and in favor of the plaintiff, Agnes E. Hays, executrix, for the sum of $5,000. Judgment was duly entered upon said verdict.

The facts established by the evidence in the Hume case are as follows:

On February 22d, 1867, the plaintiff went to Harlem on business. On his return to New York, and while waiting for the train, which stopped at corner of One Hundred and Twenty-fifth street and Fourth avenue, he took shelter under an awning attached to a house at or near the corner of One Hundred and Twenty-fifth street and Fourth avenue, belonging to Christopher Gray. It was then about half-past five in the evening. He remained there for about five minutes. It appears to have been snowing at that time. There had been a heavy snow storm a few days before, and a quantity of snow had drifted on the awning, and lay heaped to the depth of two or three feet on a part of it. While the plaintiff was thus waiting for the train, sheltered by the awning, a part of it broke down and fell on plaintiff, crushing him under the weight of snow, and inflicting on him serious injuries. The awning broke down at the point of junction with the building, leaving the posts and all the rest of the awning standing. All the woodwork of the awning was sound.

In October, 1866, four months before this accident, a fire engine struck a part of the awning, and knocked down one of its beams; it was at once repaired by a competent carpenter, who left it, as he thought, secure. It was that part of the awning which had been repaired which did fall, while the rest remained firm. This awning had stood firm since 1860, until this beam had been struck by the fire engine. The awning broke down under the unusual weight of snow which lay heaviest on the part which fell. The awning was joined to the building by having the rafters “ toe nailed,”

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that is, the spikes or nails driven obliquely into the wood of the house. The posts on which the awning rested were two feet inside the curb-stone.

The defendants requested the court to charge the jury: “ That if the jury found from the evidence adduced that the awning was originally constructed conformably to the requirements of the city ordinance respecting such structures, and if they further find that it was subsequently weakened by an accident, whose effect upon it was so secret and hidden that it could not be discovered by an experienced workman, who was thereafter employed thoroughly to examine and repair it, and who did make such repairs as he considered necessary, and that the injury to the plaintiff was really caused by the weakness so accidentally and secretly superinduced upon said awning, in conjunction with a deposit of snow three feet deep upon the part so weakened, the jury are directed to find a verdict for the defendants.”

The court refused so to charge, and the defendants excepted. The court submitted to the jury only the question of damages.

B. O’ Gorma/n for appellants.

The question whether the city was chargeable with knowledge of the alleged defect, whether it was latent or patent, was a question for the jury. (New England Express Co. v. Maine R. R. Co., American Reports, 30.) A town is not liable for latent defects in a highway, not discoverable by use of ordinary care and prudence. (Pri ndle v. Fletcher, 39 Vermont, 225.) Notice to public authorities of. defects or obstructions in streets, not occasioned by their own acts, must be express, or the defects must be so notorious as to be evident to all. (Emmott, J., in Hart v. City of Brooklyn, 36 Barb., 229 ; Griffin v. The Mayor, etc,, 9 N. Y., 456 ; Prindle v. Fletcher, 39 Vt., 255 ; Hart v. Brooklyn, 36 Barb., 229 .) Defendants only bound to keep..the surface of the highway safe and passable. (Dixon v. Lowell, 12 Gray, 60 ; Hewiston v. New Haven, 34 Conn., 136 ; Taylor v. Peckham, 8 R. I., 349 .)

E. B. Bobmson for respondents.

Defendants, as owners

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of the fee of the streets, are liable the same as individuals. (Bailey v. The Mayor, 3 Hill, 531 ; S. C., in Court of Errors; 2 Denio, 433 ; Brower v. The Mayor, 3 Barb. 254 , 257.) But a private individual is liable for injuries received from a dangerous object or erection which he suffers to remain on premises under his control, in such a situation as to endanger the safety of others. (Co. Litt., 56 b; Regina v. Watson, 2 Lord R., 866; Church v. Burkhardt, 3 Hill, 193 ; Birge v. Gardiner, 19 Conn., 507 .) They are liable for neglect of corporate duty. ( West v. Trustees of Brockport, reported in note to Conrod v. Trustees of Ithaca, 16 N. Y., 163 ; Mayor, etc., v. Furze, 3 Hill, 612 ; Jones v. City of New Haven, 34 Conn., 1 .) And that, whether defect, obstruction or peril was caused by their own act or the act of another. (Wilson v. The Mayor, 1 Denio, 595 ; The Mayor v. Furze, 3 Hill, 612 , 615 ; Hutson v. The Mayor, 5 Seld., 163 ; Davenport v. Ruckman, 16 Abb., 341 ; S. C., 10 Bosw., 20 , affirmed in the Court of Appeals, 37 N. Y., 568 , and cases there cited; Morse v. Richmond, 8 Am. Law Reg., 81 , note and cases cited.) The liability is the same with reference either to the surface of highways, or excavations under or erections upon and over it. ( Wendell v. Mayor, 4 Keyes, 266; S. & R. on Neg., §§ 391, 392, 396 ; Hutchins v. Boston, 97 Mass., 272 ; Luther v. Worcester, id., 262; Baltimore v. Marriott, 9 Md., 160 ; Wallace v. The Mayor, per Daly, J., reported in New York Times, March 15, 1870; Mayor v. Sheffield, 4 Wall., 189 ; Angell on Highways, §§ 263, 264; Burns, Justice, Highways, 30th ed., p. 1055; 2 Bishop Cr. Law, § 1053; Dickey v. Maine Tel. Co., 8 Am. L. R. [O. S.]; Dimmock v. Town of Suffield, 30 Conn., 129 ; Bartlett v. Hookset, 47 N. H.; Day v. Milford, 5 Allen, 98 ; Drake v. Lowell, 13 Metc., 292 .) Express notice was not necessary. (Davenport v. Ruckman, supra; Wallace v. The Mayor, supra; Mayor v. Sheffield, supra; Day v. Milford, supra; Drake v. Lowell, supra; Dygert v. Schenck, 23 Wend., 446 ; Congreve v. Smith, 18 N. Y., 79 ; Wendell v. Mayor [1862], 39 Barb., 330 , affirmed in Court of Appeals, 4 Keyes, 261.)

By the decisions and judgments in these actions the liability of municipalities for injuries received by individuals while in and upon the public streets, is extended beyond that recognized by any former adjudication.

The city of Hew York, and all cities and villages having like powers, are, by the judgment of the court below, held responsible for the absolute safety of all awnings and other structures above and extending over the streets or sidewalks, whether expressly permitted and allowed by the city authorities or only existing by mere sufferance, and to be insurers of all persons lawfully in and upon the streets against injury occasioned by the falling of any projecting structure.

Whatever may be the exteiit and measure of the duties and corresponding obligations and liabilities of city governments in respect to erections, resting in whole or in part upon the street, and extending over parts of the public highway, or made to overhang it in any form when made and placed by individuals for their own convenience and the better enjoyment of their lands adjoining the street, there were questions of fact which should have been submitted to the jury.

The court, however, held that there was upon the undisputed facts, a deal1 legal liability resting upon the defendants, and that the only question for the jury was as to the compensation to which the plaintiffs were entitled.

It was adjudged by the court, and as a rule off law, that the awning was improperly erected, and was defective and dangerous, and that it was culpable negligence in the city government to suffer it to remain in such imperfect and dangerous condition. It was not objected that the suffering and permitting any awning or structure of like character to overhang the streets, was a wrongful act on the part of the city authorities, but the complaint was, and the decision was placed upon the ground, that this particular awning was not properly constructed, and was dangerous by reason of defects peculiar to it.

Upon this theory of corporate liability there were ques

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tions of fact arising upon the evidence which should have been put to the jury.

The awning had been built several years before the accident by mechanics who were, so far as appears, in all respects competent to do the work. The timbers were of proper form and size. The frame was properly supported on the street front by posts firmly set in the ground near the outer edge of the sidewalk; it was fastened, resting upon cleats, to a brick and frame building adjoining the sidewalk, by nails driven obliquely into the wooden frame, and the whole was built as other awnings of the same kind were frequently built.

About four months before the injury, some part of the frame work had been damaged by the running against it of a fire engine, and was repaired by a competent mechanic, who did what he supposed necessary to restore it to its former condition and to make it safe.

Within a day or two before its fall, there had been a fall of snow which would seem to have been unusual as to quantity and amount, and at the time of the accident there was a very heavy body of snow, weighing several tons, remaining upon it, having been suffered to accumulate and remain by the owner of the building, and that this fact was or could have been known to the authorities of the city so as to charge them in any view of the case with negligence in not causing the snow to be removed, is not claimed.

The timbers and frame of the structure were sound, and there is no evidence that if there was any defect or imperfection in the repairs the year before the accident, they were patent or visible to any one.

The objection is to its original construction, and only that it was not properly let into and supported by the building to which it was attached.

Architects and carpenters, experts, testified that the frame was not supported in the safest and best manner on the side of the building, and that the manner in which it was supported and made fast was visible. Mo one testified that it was not reasonably safe, or such a structure as a man of ordinary

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prudence, or even a carpenter might not erect, or that it was not reasonably safe under ordinary circumstances, and without any extraordinary weight or pressure upon it. The jury might well have found upon the evidence that it was not negligent, a want of ordinary care and prudence, to suffer and permit an awning to be erected precisely as this was erected; that there was no want of ordinary care and prudence in permitting the structure to remain in the condition of repair it was up to the time of its fall, and that the fall was not the result of decay or any inherent fault in its original construction, but was caused by an unusual fall and accumulation of snow within a day or two before the accident, and that the defendants had no notice that such accumulation had been suffered by the owner of the awning, and that there had not been a sufficient lapse of time after the fall of the snow to authorize a presumption that the city officials must have known of the accumulation. The jury might also have found, even if they had found that the awning had not been properly and safely constructed, that the defects were of such a character that it was not evidence of negligence or omission of duty in the city authorities to be ignorant of or to have overlooked the fact.

The city authorities are not bound to be experts or skilled in mechanics and architecture, and can only be held to the extent of reasonable intelligence and ordinary care and prudence.

A finding upon any of these questions in favor of the defendants would have entitled them to a verdict within well settled principles, and they were all open and debatable questions upon the evidence.

A municipal corporation is not liable for injuries caused to individuals by obstructions on the highway not placed there by its own officials or by authority of the city government, until after actual notice of their existence, or until by reason of the lapse of time it should have had knowledge, and therefore actual notice may be presumed. (Mayor v. Sheffield, 4 Wall., 189 ; Colley v. Westbrook, 57 Maine R.,|81; Hunt v. Brook

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lyn, 35 Barb., 226 ; Griffin v. Mayor, etc., of New York, 5 Seld., 456.) The case does not show that the judge at circuit was asked to submit these questions in the form stated to the jury, but the counsel for the defendants was refused permission to go to the jury upon the question, whether the awning was constructed conformably to the city ordinance, and was subsequently weakened by an accident, the effect of which was so secret and hidden that it could not be discovered by an experienced workman employed to examine it and repair it, and who did make such repairs as he considered necessary, and whether the injury was not caused by the weakness so accidentally and secretly superinduced, in conjunction with the deposit of snow. In substance, the request was to submit to the jury the question whether the fall of the awning was not occasioned by a secret defect resulting from the injury of the year previous, and which was not discern-able, and the unusual accumulation of snow upon it, and to charge that if the fact was .found as suggested, the defendants were entitled to a verdict, and to the refusal of the judge to comply with this request there was an exception.

The city ordinance was put in evidence on the trial, but is not found in the record. The only departure from the ordinances in the construction of the awning, as claimed by the connsel for the plaintiff, was in placing the outer supports two feet inside instead of at the curbstone, which was wholly immaterial' so far as any question in the case is concerned, and that part of the request, therefore, has no significance. Upon the other branches of the request there was evidence proper for submission. The plaintiffs gave evidence of the previous injury to the awning frame and of the mode and manner in which it was repaired; that the part thus injured was the part that fell, and the testimony tended to show that although there were no outward indications of injuries not repaired, still that a weakness did in fact result from that injury which did contribute to the accident.

This, with the evidence of the fall and accumulations of

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snow, bore directly upon the question of negligence and omission of duty charged against the defendants. The refusal to submit the question to the jury was error. The important questions involved in the action would have been more broadly presented and could have been better decided had the counsel for the defendants taken an exception to the ruling and decision of the learned judge, that upon the evidence and the undisputed facts the defendants were liable for the injuries sustained by the persons upon whom the awning fell, and that there was no question for the jury except as to damagés, or by a motion for the dismissal of the complaint, on the ground that no cause of action had been proved against -the defendants. There are important questions involved in the actions, touching the liability of cities for injuries resulting from structures and projections of this character, but which are not clearly and distinctly presented upon this appeal.

Although some of the questions that will necessarily arise are indicated by the record, they are not presented in a form to justify their consideration at this time.

A second trial will more fully develop the facts and enable counsel intelligently to present the question. JFor the error suggested judgment must be reversed and a new trial granted.

All concur.

Judgment reversed.

Cases cited

Brower v. Mayor of New-York 3 Barb. 254 N.Y. Sup. Ct. 1848-06-08 at 257 p. 643