Fordham v. Gouverneur Village — 44 N.Y.S. 1117

Majority

p. 1117

FORDHAM v. GOUVERNEUR VILLAGE.

(Supreme Court, Appellate Division, Third Department.

March 3, 1897.)

Headnote

Action by Charles F. Fordham, as administrator, against Gouverneur Village.

O. A. Kellogg, for appellant.

William Neary, for respondent.

Judgment affirmed, with costs.

I dissent. 1. The village trustees were the water commissioners, and thus the village did the acts complained of, and further notice .vas unnecessary.

2. I do not think the Keeseville Case, 148 N. Y. 46 , 42 N. E. 405 , applies. That case holds that when a duty is not enjoined upon a village, but it may or may not undertake it at its option, if it does undertake it it is not liable for the omission to perform it thoroughly. It was a case of the lack of efficiency in an enterprise voluntarily assumed. Here the case is

Dissent

p. 1118

of misfeasance, in creating dangerous obstructions to public travel,—a violation of duty specially enjoined in respect to the safety of the streets.

3. Whether the bridge was left in a reasonably safe condition was a question of fact for the jury.

4. Whether the deceased was free from contributory negligence was for the jury. Chisholm v. State, 141 N. Y. 246 , 36 N. E. 184 . They might infer, from her age, sex, and character, and from all the circumstances, in the absence of evidence to the contrary, that the plaintiff took reasonable care of her own safety. Railroad Co. v. Gentry, 163 U. S. 353 , 16 Sup. Ct. 1104 . If the danger was not obvious or to be apprehended, she was not chargeable with negligence in failing to look out for it.

Cases cited

Springfield Fire & Marine Insurance v. Village of Keeseville 148 N. Y. 46 N.Y. 1895-12-19 p. 1117
Chisholm v. State 141 N. Y. 246 N.Y. 1894-02-09 p. 1118
Texas & Pacific Railway Co. v. Gentry 163 U. S. 353 SCOTUS 1896-05-18 p. 1118