Wood v. Third Ave. Railroad

The Third Avenue Railroad Company operates a cable road in the city of New York, commencing somewhat south of the New York entrance of the Brooklyn bridge, and passing along the street immediately opposite the entrance, and on to the northern part of Manhattan Island. For the convenient operation of the road, it is necessary that access should be had to the underground cables, by means of which the cars are moved. This access is obtained by manholes, located at convenient places in the roadway, between the rails of the railroad. These manholes are two feet nine inches square, constructed of plates of iron, of a thickness sufficient to carry the weight of any trucks or wagons which pass up and down the roadway, and consequently are of very considerable weight. For the safe operation of the road, it is frequently necessary that access be had to the cable underground without delay, and, for that purpose, that the manhole covers may be speedily lifted as occasion required. In order to lift them, there has been cast in the center of each cover a circular hole, If inches in diameter. Underneath this hole, in each case, was a pit; so that anything getting into the hole would fall several feet before striking the bottom of the pit There are some 1,200 manholes thus covered. On a day in April, 1894, the plaintiff, who lived in Brooklyn, had occasion, as was his daily custom, to go over the Brooklyn bridge, and cross the street upon which the defendant’s tracks had been built. He was at the time-lame, so that he was obliged to use a crutch. In crossing the street, by the defendant’s track, his crutch went into one of the holes in the center of the manhole cover, and he was thrown to the ground, and severely injured, and brings this action to recover damages for the injuries he then received. Upon the trial the plaintiff recovered a verdict, and the defendant now moves for a new trial, upon the-judge’s minutes. At the close of the case, the defendant moved to dismiss the complaint, upon the ground, among others, that there was no evidence of any negligence on its part. This is the only question which will be considered upon this motion.

It appeared that the defendant was authorized to build its tracks, and that the manner in which they were laid was approved by the department of public works of the city of New York, and a permit issued for their construction in that way. Without such authorization, the defendant would undoubtedly have been a wrongdoer in-interfering at all with the public highway, and would have been liable for any accident which happened because of its interference,, without reference to the question of negligence. Clifford v. Dam, 81 N. Y. 52 . The authorization and approval of- the manner of doing its work relieved the defendant from. the charge of maintaining a nuisance in the highway, and it became liable for interference with the highway only if it failed to use proper care and skill in the construction of the railroad which it was authorized to build and maintain thereon. It was held in the case of Bellinger v. Railroad Co., 23 N. Y. 42 , that one who had legislative authority for constructing

The question, then, is, was there evidence from which the jury might have found that the defendant was guilty of negligence in leaving a hole of this size in the manhole cover? Whether or not such a hole was absolutely necessary for the operation of the defendant’s road was disputed, and the jury might, upon the testimony, have found that that manner of construction of the manhole cover, while it was convenient, was not indispensably necessary for the operation of the defendant’s road, and might have been replaced by some other construction in which there would have been no hole of this kind. Upon this motion, it must be presumed that the jury did so find. The location of this manhole cover was immediately opposite the entrance to the Brooklyn bridge,—a place which, at all hours of the day, is thickly thronged with people, and over which, morning and evening, as many people pass as over any other part of the city of New York. It was made to appear that the number of people who pass over the Brooklyn bridge on foot, leaving the bridge in close proximity to this place, runs up into the millions yearly. Not only a great many of these people, but large numbers of other people, pass backward and forward over these manholes daily; and the number of people who went over the manholes of this construction along the length of the road of the defendant every day must have been exceedingly great. It was made to appear that not one accident had ever happened to any one of this great number of people on account of the existence of these holes in the covers. Upon this state of facts, the defendant insists that there is no sufficient proof of its negligence in constructing these covers in this way. In considering this question it must be borne in mind that the defect alleged is not a failure to keep in repair, but one of original construction. If these manhole covers had been constructed in some other way, and by long use the holes had become worn in them, it might fairly be insisted that, because the holes had not been put in the covers in the first place, they were not thought proper, and their existence created a defect which it was negligence to permit. This consideration takes the case out of the authority of several cases cited by the plaintiff, where a defect had come to exist because the construction was out of repair, and the defect was the direct cause of the accident. In such a case as that, presumably the original construction was proper and safe, and the fact that it was permitted to get out of repair, and develop a defect 'which caused the accident, is of itself evidence of negligence. Such were the cases of Fash v. Railroad Co., 1 Daly, 148 , and Rockwell v. Same, 64 Barb. 438 . So, also, this case is not to be .governed by those in which the precise construction was prescribed by the statute; as in Humbert v. Cable Co., 12 N. Y. St. Rep. 172 . In that case the law prescribed that the slot for the cable should be three-quarters of an inch wide. That dimension of the slot having

In this case, as has been said, the hole was made in the cover as it was originally constructed; and the question then presents itself whether .this original construction was unsafe, or whether the highway, as thus restored, was left in an unsafe condition. The duty of a railroad corporation which interferes with a highway is to use reasonable' care to restore it so as not to unnecessarily interfere with its usefulness. But the corporation is not called upon to restore it to such condition as under no circumstances can harm come to one who uses it. Its duty is simply to use reasonable care in that direction. The corporation is entitled in building its road, in the first place, to erect in the highway, whatever is absolutely necessary to enable it to operate the road; and if such construction is made with proper care and skill, however inconvenient it may be to the rest of the community, it is damnum absque injuria. Such is the plain holding of the case of Bellinger v. Railroad Co., supra, as interpreted by the long line of cases in which it has been considered. But although that which is done by way of constructing the road is not absolutely essential, but only adopted as a more convenient appurtenance instead of some other mode of construction, which would be equally useful, it cannot be said that it is negligence to adopt that mode, unless some danger might have been apprehended from its use. One is not guilty of negligence unless he omits to do something which a reasonable man would do, or does something which a reasonable man would not do. Davis v. Winslow, 51 Me. 264 . It is said by Judge Grover that legal negligence is the omission of such care as persons of ordinary prudence exercise and deem adequate to the circumstances of the case. In restoring the highway, it is the duty of the corporation to take into consideration the conditions that exist in that part of the highway where it has occasion to build its road, the extent of its use, the manner in which the road is to be built along or upon it, what is likely to happen in the place where it is to be built, the effect which any particular mode of construction will have upon its use, the danger to which the public will be exposed by the use of that mode of construction, how far a due regard for their safety will permit such a mode of construction to be adopted, and whether, upon the whole, such a mode of construction as is adopted will be sufficient for the purposes for which the highway is to be used. One element to be taken into consideration is whether any accident is likely to happen from the particular mode of construction; and, if the mode is such that no accident is likely to occur from it, it is not negligence to adopt it. In the case of Blyth v. Waterworks Co., 11 Exch. 781, it is said that negligence is

Applying this rule, it must be said that the defendant is not guilty of negligence in adopting this construction of the manhole cover, unless it is made to appear that injury to persons using the highway might reasonably be anticipated from such a mode of construction. It is a more serious question whether or not it should have been submitted to the jury to decide if such an accident might have been reasonably anticipated, or if that matter should have been disposed of as a question of law by the court. In each one of the cases cited above, the question was disposed of by the court. In the English case it was held that there should have been a nonsuit, and, without ordering a new trial, the verdict was directed for the defendants by the appellate court. In Gould v. Woolen Co., the court, at the trial, ordered a verdict for the1 defendant, for the reason that the facts which appeared did not warrant the finding of negligence, and the exceptions to that ruling were overruled by the supreme court. In the case of Ryan v. Railroad Co., 121 N. Y. 126 , 23 N. E. 1131 , the plaintiff was hurt by stepping between the car and the platform at an elevated railroad station. Because of a curve in the platform, there had been left a space of about eight inches between it and the car step, through which space the plaintiff fell. It appeared that

The necessary inference from these cases is that, unless it has been made to appear that the defect was one from which a reasonable man might anticipate that injury might occur, the fact that the construction complained of had proved to be safe and convenient in practice, and that no other accident had ever happened because of it, requires the court to hold that there was no' negligence, and to dispose of it as a question of law. Negligence in such a case cannot be inferred from the mere happening of a single accident. It was error, therefore, to deny the motion of the defendant, to dismiss the complaint, and for that error a new trial must be granted.