Talcott v. City of New York

The action was brought to recover the damages sustained by the plaintiff in consequence of an obstruction in a public sewer, which resulted in the overflow of the plaintiff’s premises, causing damage. There is no claim that the sewer was improperly constructed, but it is alleged that the sewer became obstructed, and that in consequence thereof the sewage backed up into the plaintiff’s premises. It appeared that on the afternoon of March 23, 1897, the cellar of the plaintiff’s premises, No. 83 Vandam street, in the city of New York, became flooded with water six or seven inches deep. The plaintiff’s premises were not directly connected with the sewer, but there was a broken stone drain constructed along the west wall of No. 83 Vandam street, and the floor was so graded that the water would flow to this drain, and be carried off through a drain pipe con

When the defendant constructed this sewer, it did so for the benefit of. the property adjoining on the street through which it ran, and it then assumed the obligation to provide a sewer competent to carry off the ordinary flow of water, and to maintain it in such a condition that it would fulfill the purpose for which it was constructed. The sewer was capable of doing the work that was required of it; that is, to carry off all of the sewage flowing into it from the houses with which it was connected, and a failure to maintain the sewer in this "condition would be negligence for which the defendant would be responsible. The principle upon which such a liability has been imposed was stated by Chief Judge Nelson in Mayor, etc., v. Furze, 3 Hill, 615 , as follows:

“If, therefore, we concede that the exercise of the power was, in the first instance, optional on the part of the corporation, yet, having elected to act under it, they must be held responsible for a complete and perfect execution. It would be highly unjust to allow that, after constructing these works, the corporation might refuse to keep them in repair, and thus leave the street on which they have been placed in a worse condition than before they were put there. The owners and occupants of houses and lots in the neighborhood, hav

ing been charged with the expense of the sewers, acquired a right to the common use of them, and a corresponding duty devolved upon the corporation to keep them in proper condition and repair. This is too obvious to require either argument or authority.”

• I know of no case in which this obligation of a municipal corporation has been questioned. In Mills v. City of Brooklyn, 32 N. Y. 499 , Chief Judge Denio, in speaking of Mayor, etc., v. Furze, supra, says: “The judgment was placed upon the ground that it was the duty of the corporation to preserve and keep in repair erections which they themselves constructed, so that they should not become sources of nuisance to the adjacent proprietors;” and, while some of the observations of the chief judge in the opinion were criticised, the obligation of the city where the sewers had been suffered to be out of repair, on account of which the plaintiff’s premises were overflowed, was recognized and sustained.

In Barton v. City of Syracuse, 36 N. Y. 54 , the same question was presented. It is there said:

“Under this condition of authority and duty, the municipal corporation was bound, through the proper officers, to a faithful and prudent exercise of power, and carelessness and negligence in that regard created a liability which might be enforced by any one suffering damages therefrom. So the law is firmly established that, in constructing sewers and in keeping them in repair, a municipal corporation acts ministerially, and, having the authority to do the act, is bound to the exercise of needful prudence, watchfulness, and care. * * * It is also insisted that the recovery is erroneous because there was no proof of notice to the corporation of the needed repair before the injury complained of occurred. Such notice, however, was not necessary in this case. The injury here resulted from an omission of duty,—a neglect to-do an act which it was incumbent on the defendant to perform.”

In McCarthy v. City of Syracuse, 46 N. Y. 196 , the same rule of liability was applied; and Kapallo, J., in delivering the opinion of the court, says:

“But where a sewer had been determined upon and is constructed, all the authorities agree that the duties of constructing it properly and keeping it in good condition an'd repair are ministerial, and that negligence in the performance of those duties will render the city liablé for damages resulting therefrom.”

That case was tried before a referee, who found as a fact that the defendant was guilty of negligence in permitting the sewer to become obstructed and out of repair. The defendant contended that there was no such negligence, as none of the officials of the city had notice that the sewer was obstructed or out of repair. In answer, the court said:'

“The mere absence of this notice does not necessarily absolve the city from the charge of negligence. Its duty to keep its sewers in repair is not performed by waiting to be notified by citizens that they are out of repair, and repairing them only when the attention of the officials is called-to the damage they have occasioned by having become dilapidated or obstructed, but it involves the exercise of a reasonable degree of watchfulness in ascertaining their condition from time to time, and preventing them from becoming dilapidated or obstructed. Where the obstruction or dilapidation is an ordinary result of the use of the sewer, which ought to be anticipated and could be guarded against by occasional examination arid cleansing, the omissions to make such examinations, and to keep the sewers clear, is a neglect of duty which renders the city liable. * * * If the appellant has shown that the sewer was constructed in a workmanlike manner, and that care had.

been exercised to keep it in proper order, and that, notwithstanding this care, it had caved in, then their want of notice of the injury in season to repair it would have excused them, and this court would be justified in reversing the finding of negligence. But nothing was shown as to the mode of construction of the sewer, nor was it proved that any examination of it had ever been made since it was built. How long it had been falling into the condition in which it was finally found, or from what cause it became so dilapidated, are left to conjecture.”

We have in these cases a statement oí the duty that is imposed upon municipal corporations in relation to its sewers. This duty “involves the exercise oí a reasonable degree of watchfulness in ascertaining their condition from time to time, and preventing them from becoming dilapidated or obstructed.” They are not absolved from such duty by waiting to get notice of the fact of obstruction, and if they neglect to perform this duty of “watchfulness in ascertáining their condition, from time to time,” they are liable for any injury that results from an obstruction which an inspection would have disclosed.

We are, then, confronted with the question as to what evidence is necessary to show that this duty to exercise “watchfulness in ascertaining their condition” was not performed. Judge Sapallo says in McCarthy v. City of Syracuse, supra:

“Where the obstruction or dilapidation is the ordinary result of the use of the sewers which ought to be anticipated, and could be guarded against by occasional examination and cleansing, the omission to make such examination, and to keep the sewers clear, is a neglect of duty which renders the city liable.”

Thus, the fact that a sewer became obstructed by its ordinary use, there being no evidence that such an obstruction was caused by any unusual or exceptional condition, and that such an obstruction was liable to be caused by the gradual accumulation of solids from the sewage, is, it seems to me, sufficient evidence to require from the defendant an explanation as to its watchfulness in ascertaining its condition from time to time, and preventing it from becoming obstructed. And the absence of such an explanation would justify the jury in finding that the defendant had been negligent in the performance of this duty. Where the law imposes upon a municipal corporation the duty of exercising a reasonable degree of watchfulness in ascertaining the condition of a sewer from time to time, and preventing it from becoming obstructed, it is certainly some evidence that this duty has not been performed when the sewer becomes obstructed without any cause except the ordinary use to which the sewer has been put. Prom the very nature of things, it would be impossible for the plaintiff to prove that the city has not inspected the sewer. It seems to me that the case is analogous to that of a common carrier, in which it is held that, where an accident is caused by any deficiency in the road itself, the cars, or any portion of the appliance belonging to the company, and used in connection with the business, a presumption of negligence on the part of those whose duty it was to see that everything was in order immediately arises; it being extremely unlikely that any defect should exist of so hidden a nature that no degree of skill or care could have foreseen or discovered it. “If it appears that the mischief has resulted from a defect in some part of the appa

I can find nothing in the cases to which our attention has been called which is to the contrary. In all of the cases where a judgment for the defendant has been sustained, there was evidence to show that the obstruction in the sewer, or the overflow of water, was caused by some exceptional condition, or that some other fact existed which negatived the presumption of negligence. Thus, in Smith v. Mayor, etc., 66 N. Y. 295 , it was found as a fact that the overflowing of the sewer and flooding of the plaintiff’s premises was caused by the stoppage of the sewer with sand, dirt, and refuse matters washed in from the streets; that at or just before the time of the overflow there was an unusually heavy shower; that there was no proof of any knowledge on the part of the defendant of any defect or bad condition of the sewer prior to the occurrence, or of any notice to it of such condition; and the judgment was affirmed upon this finding of fact. The court held that they were not at liberty to consider any facts except those found by the referee; that “it is found upon sufficient evidence that ^the overflow was caused by a stoppage of the sewer with sand, dirt, and refuse matter washed in from the street; and that at or just before the flooding of the plaintiff’s premises there was an unusually heavy shower of rain. There is no proof of any obstruction before

“The plaintiff did not rest his case on the mere proof of the happening of the accident, and it is unnecessary to consider whether, in the absence of any evidence in the case beyond that, a presumption of negligence would have arisen which would have called on the city for an explanation. * * * The plaintiff has, without fault on his part, suffered a serious injury, but we think the evidence offered by him, taken together, not only does not tend to show any negligence on the part of the public authorities, but rather to exempt them from the imputation of negligence.”

And so in the case of Jenney v. City of Brooklyn, 120 N. Y. 164 , 24 N. E. 274 , where the action was brought to recover for the damage caused by the escape of water from a Are hydrant. The fire hydrant was found detached from the main water pipe, and resulted in allowing a stream of water to flow from the pipes out upon the plaintiff’s premises. The evidence was uncontradicted that the fire hydrant was of the best of its kind; that the work of placing it was successfully done, and that when completed it was a good job; and it was held that upon that evidence the jury were not justified in finding that the injury was due to the negligence of the defendant in constructing the hydrant. In these cases the defendant had made its explanation, and had established without contradiction the facts necessary to rebut presumption of negligence. In a case much like the one now before us, this court in the Second department held that the defendant was called on to explain what was the difficulty with the sewer on the particular occasion, and that it was not responsible for that difficulty. Magee v. City of Brooklyn, 18 App. Div. 22 , 45 N. Y. Supp. 473 .

We recognize the doctrine established in all these cases that there is no absolute guaranty or undertaking on the part of a municipal corporation that its streets or other structures shall at all times, and under all circumstances, be in a safe and perfect condition, and that its obligations and duty extend only to the exercise of reasonable care and vigilance. The question that we have been discussing is one that relates solely to the evidence which would sustain a finding of negli

It follows that the exceptions should be sustained, and the motion for a new trial granted, with costs to the plaintiff to abide the event. PATTERSON and McLAUGHLIN, JJ., concur.

I do not see how the city can be held to be liable in this case. The trouble was remedied within a reasonable time after it was discovered, and this seems to be the rule of diligence which is exacted to be observed by the city. It has never yet been held that the city is liable for defects which neither it nor any one else knew anything about, and which it did not create. It cannot be that the city can be held liable unless it is shown that the defect has existed for such a length of time that notice to the city can be presumed. This seems to be the basis in all cases of the city’s liability. No evidence of this kind was offered in this case, and therefore the motion should have been denied.

O’BRIEN, J., concurs.