Roe v. Mayor of New York — 22 N.Y. St. Rep. 413

Majority

p. 413

Jasper P. Roe, Resp’t, v. The Mayor, etc., of the City of New York, App’lt.

(New York Superior' Court, General Term,

Filed January 7, 1889.)

Headnote

1. Municipal Corporation—Negligence—Public streets—When ques-

tion of fact for the jury.

Where in an action to recover the value of a horse injured by a fall upon an iron plate or covering over a gutter, in a certain street, the slipping-was alleged to have been caused by reason of the dangerous, negligent and unskillful construction and maintenance of the plate, Hi Id. that it was-for the jury to find whether or not the city had negligently suffered the iron plate, which was in the first place safe, to become smooth and unsafe, without replacing it with a fresh plate; and whether the slipperiness resulted from the wet and mud only, or from smoothness of the covering with wet and mud upon it. If the latter was the cause, and the cityneglient in respect to that, then the defendant would not be entitled to a dismissal of the complaint.

2. Evidence—When excluded as too general.

A witness was asked whether he was " familiar with the effect upon aNew York sireet of much traffic, that such a rain-fall would have?" Held, that a refusal to allow the question wasproper, in that it was too general.

3. Refusal to charge—Exception must specify particular omission.

Where the charge, as made correctly, referred to some parts of several requests to charge in a manner that made it unnecessary to charge the other parts, an exception to a refusal to charge the other requests,” is too general, as there is no specification of any particular omission.

p. 414

Appeal from judgment entered on verdict for plaintiff ¡and from order denying motion for a new trial made upon the minutes.

Walker Hartwell, for app’lt; George F. Murray, for resp’t.

—The complaint charged that the horse of ¡the plaintiff slipped and fell upon an iron plate or covering over a gutter across a certain street, and that the slipping was caused “by reason of the dangerous, negligent and "unskillful construction and maintenance by the defendant of the said iron plate or covering,” etc.

Upon the trial there was testimony upon which the jury ■could have found, that the iron covering when it was first-■placed over the gutter, was rough on its surface and furmished a safe foot-place for horses, and that since then the roughness had been worn off until its surface was so ■•smooth that it did not furnish a safe foot-place for horses, -and was dangerous to horses stepping upon it, on all occasions and especially if it were wet and muddy.

On the trial, the defendant’s counsel moved for a dismissal of the complaint on the ground that the city cannot be held liable for an exercise of its judgment and discretion in selecting particular material for a covering of a gutter across a street, and Urquhart v. Ogdensburg ( 91 N. Y., 71 ) was cited to support the motion. It might be doubted if in the first instance the covering was beyond doubt likely to be dangerous and unfit for travel upon it, whether a. ¡selection of it would be a cause of discretion rather than -an abuse of discretion. If this doubt were not valid, the case cited, and others which follow it, declare it to be the duty of a corporation to keep in repair or good order whatever it has once competently devised and selected. It was therefore for the jury in this case to find whether or not the city had negligently suffered .the iron plate which was 3n the first place safe, to become smooth and unsafe, without replacing it with a fresh plate or in some way preventing the place in the street remaining in a dangerous state.

It may be suggested that if the slipperiness was because of the wet and mud upon the covering of the gutter, and therefore the result of causes for which the city was not responsible (Kinney v. The City of Troy, 108 N. Y., 567 ; 14 N. Y. State Rep., 15; Kaveny v. The City of Troy, 108 N. Y., 571 ; 14 N. Y. State Rep., 18), the plaintiff should not recover.

In the present case, it was for the jury to say whether the slipperiness resulted from the wet and mud only, or from the smoothness of the covering, with the wet and mud upon it. If the latter were the cause, and the city neg

p. 415

ligent in. respect of that, then the defendant would not be-entitled to a dismissal of the complaint. On the trial the defendant did not ask that the jury should not pass upon the matter.

The learned counsel for the city argued that the cause of action alleged in the complaint did not include a case of the city negligently suffering the plate to get out of repair or out of order. On the trial, no specific allusion was made to the testimony as not supporting the complaint as it was-framed. The objections were taken to the sufficiency of the proof to sustain a cause of action. And the proof did. sustain the allegation of the complaint, that the defendant “negligently maintained the street in the respects specifically averred.”

The court refused to allow the question asked for the defendant of an officer of the weather bureau: “Are you familiar with the effect upon a New York street of much, traffic that such a rain fall would have?” The witness had testified that rain had fallen of a described quantity recently before the accident.

Several considerations support the ruling of the court, even it be assumed that the witness was an expert as to-part of the subject of the question. The question was too general as relating to many streets, in many and various-conditions. As to parts of the effect of a rain fall, which are commonly observed, the witness was not an expert.

Before the charge to the jury, the counsel for defendant-made six requests to charge. In the charge, the court complied with the first and sixth requests, and said: “ The. other requests I refuse to charge.” There was an exception, to that refusal. The court in the charge as made had correctly referred to some parts of the requests it refused to-make and had made it unnecessary to charge other parts by the way in which it described the legal liability of the defendant. The exception, therefore, was too general, as there-was no specification of any particular omission by the court.

The judgment and order should be affirmed, with costs..

All concur.