Harrigan v. City of Brooklyn — 42 N.Y. St. Rep. 625

Majority

p. 625

William Harrigan, Resp’t, v. The City of Brooklyn, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

Municipal corporations—Negligence—TJnpaved sidewalks.

Plaintiff, while traveling on a part of a street which had no paved sidewalk, attempted to cross at a point where there was no cross-walk and caught his foot in a V shaped hole in the curb, by which his ankle was broken. Held, ihat as the city authorities had not paved or flagged the sidewalk, persons using it did so at their own risk; that the accident in question was one which could not have been anticipated, and that a want of reasonable care by defendant was not shown.

Appeal from judgment in favor of plaintiff, and from order •denying motion for a new trial.

On July 21, 1888, the plaintiff, a plumber, was building a house on Centre street, Brooklyn; after he had quit work that night, which was Saturday, he started with his brother to carry ■some white lead and oil down to where the house was building, so as to be able to put a coat of paint on early Monday morning.

The keg of white lead the plaintiff was carrying weighed twenty-five pounds. i

They walked along Columbia street to Hamilton avenue, and along Hamilton avenue to Hicks street, and then started to walk along the right-hand side of Hicks street.

Hicks street was open for traffic from Hamilton avenue to the bay or river front; it had been regularly graded and the centre of it paved with cobble stones, with blue-stone gutter and curb ; the sidewalks from Hamilton avenue to Nelson street had been flagged, but from Nelson street to the river front the sidewalks had not been flagged, but were dirt sidewalks ; there were houses all the way along the street, and it was used by the public for wagons, and the sidewalks by people walking; the plaintiff had

p. 626

walked on Hicks street as far as Huntington street; this was beyond Nelson street and where there were dirt sidewalks ; they .then started to cross the street; there was a puddle of water in the street, and they separated, one passing on each side of it; the plaintiff stepped up with his foot onto the curb of the sidewalk ; at this point there was a Y-shaped space in the curb-stone where the ends of two of the stones came together; his foot slipped into this space and he fell, breaking both bones of his leg and injuring him severely; this defect had existed for a long time prior to this accident.

The defendant proved by two policemen that they had never-noticed this defect, and that it was their duty as policemen to-make any reports if they had noticed it.

Almet F. Jenks {Wm. T. Gilber* of counsel), for app’lt; James 0. Church, for resp’t

It cannot be said there was not evidence, in case the; jury believed the plaintiff and his witnesses, to sustain the verdict, although it seems very doubtful from reading the testimony whether the accident occurred at the time or place claimed by the plaintiff.

The credibility of the witnesses was for the jury to pass upon,, and under familiar rules the verdict must stand as to the facts.

It is undoubtedly true, as a proposition of law, that where power is vested in public officers to make improvements, such as street sewers, etc., and keep them in repair, the duty to make them is quasi judicial or discretionary, involving a determination as to their necessity, location, etc., and for a failure to exercise this power or an erroneous estimate of the public needs, no civil action can be maintained.

Judge Cooley says in the Toolan case, 37 Mich., 154 , “ In planning public works a municipal corporation must determine for itself to what extent it will guard against possible accidents. Courts and juries are not to say it shall be punished in damages for not giving to the public more complete protection, for that would be to take the administration of municipal affairs out of' the hands to which it has been intrusted by law.”

It is perfectly clear in this case that no human foresight could ever have anticipated such an accident as is here claimed.

The city authorities had never paved or flagged the sidewalk, and in that regard had never invited the public to use it except at their own risk. The authorities had never planned to make a sidewalk for travel, and any one attempting to use it took the risk of accident unless there was some dangerous hole or obstruction which had been placed there since the sidewalk was constructed so far. as planned.

The notch where plaintiff claims he was injured was not at a crossing and it is a most remarkable coincidence, not to say unreasonable, that the plaintiff should cross the street at this precise spot and happen to put his foot in that particular notch in the curbstone.

Applying the rule before laid down, it does not seem to us that

p. 627

the plaintiff established a want of reasonable care on the part of the defendant.

It was really such a defect as would not be liable to be in that locality, and one which no reasonable man would ever suppose would be likely to result in injury to any one.

We think the judgment ought to be reversed and new trial ordered, costs to abide event.

Barnard, P. J., and Dykman, J., concur.