Majority
Headnote
1. Municipal Corporations—Defective Streets—Dbleoation of Duty.The evidence contained in the record tends to prove that Washington street was one of the principal thoroughfares of the city of Watertown; that the sewer, at the point where the accident occurred, had been excavated to the depth of at least 10 feet; and that it was from 8 to 10 feet in width. It was conceded by one of the defendants, when upon the witness stand, that there was no other point along its entire length which presented greater dangers to travelers; and there is no pretense that a watchman had been stationed there to warn people of the dangerous condition of the street. The evidence as to the character and extent of the means adopted to prevent accident was more or less conflicting, so that a clear question of fact respecting the defendants’ negligence was raised; and counsel, upon the argument,' frankly conceded that, as to that feature of the case, the verdict of the jury was conclusive. The court was advised, with equal candor, that the only grounds relied upon for a reversal of the judgment and order appealed from were (1) the absence of all liability upon the part of this defendant, in any event; (2) the excessive amount of the damages awarded; and (3) the failure of the plaintiff to establish due care and effort upon her part to avoid the danger which confronted her. We will proceed, therefore, to consider these several propositions in the order in which they have been stated.
The contention that the city of Watertown is not liable for the injuries which befell this plaintiff rests upon the assumption that by entering into an independent contract with a third party to construct the sewer, over whose methods and acts it had no control, and from whom it had exacted a stipulation that proper precautions should be taken for the protection of the public, the municipality relieved itself from all further duty or obligation in respect of the matter. Such, undoubtedly, is the general ride. Wood v. City of Watertown, 58 Hun, 298 , 11 N. Y. Supp. 864 , and cases cited. And it is one which might be invoked in aid of the defendant’s con
“At the place where the horses were fastened the street was in perfect condition, and the horses did not become restless or frightened from anything existing in the street; and the accident was in no way caused by any imperfect condition of the street, but simply by the noise resulting from the blast.”
It will be seen at a glance that this case has no application to the one now under consideration, and we pass, therefore, to the question of damages, which, it is insisted by the defendant, are excessive in their amount. Considerable evidence was given upon the trial of the case respecting the nature and extent of the plaintiff’s injuries, some of which did, perhaps, tend to show that they were not so serious as she claimed them to be, and, in a measure, to justify the charge that she was malingering. But this feature of the case was fully submitted to the jury, who saw and heard the various witnesses; and, in view of the conflicting character of the evidence upon this branch of the case, we do not feel disposed to interfere with their verdict, especially as the damages awarded cannot be deemed excessive if the statements of the plaintiff and her witnesses are to be believed.
The serious question in this case is that presented by the defendant’s third proposition, which is, in effect, that in approaching this open sewer the plaintiff was unmindful of the obligation resting upon her to exercise such a degree of care and caution as should be commensurate with the dangers surrounding her. It is a well-established rule of law that a person using a public street is not required to exercise vigilance to discover dangerous obstructions
The judgment and order appealed from should be affirmed, with costs. All concur.
Cases cited
- Storrs v. City of Utica 17 N. Y. 104 p. 620
- Brusso v. City of Buffalo 90 N. Y. 679 p. 620
- Pettengill v. City of Yonkers 116 N. Y. 558 p. 620
- Herrington v. Village of Lansingburgh 110 N. Y. 145 p. 620
- Weston v. City of Troy 139 N. Y. 281 p. 621
- Whalen v. Citizens' Gas Light Co. 151 N. Y. 70 p. 622