Cassidy v. City of Poughkeepsie — 54 N.Y. St. Rep. 224

Majority

p. 224

Susan Cassidy, Resp’t, v. The City of Poughkeepsie, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

Municipal corporations—Negligence—Care of streets.

It is the duty of a municipal corporation, in the exercise of care over its streets, to look after the effects of protracted use upon a structure, such as a cover of a sewer hasin, likely to become dangerous in the course of time; and such duty is equally incumbent where the foothold has been originally constructed by lawful authority, as if it had been the work of trespass or the elements.

Appeal from judgment in favor of plaintiff, entered upon verdict for $600, and from order denying motion for new trial.

Action for injuries sustained by plaintiff by falling into the opening of a silt basin in the city of Poughkeepsie.

C. B. Herrick, for app’lt; J. F. Ringwood (J. Morschauser, of counsel), for resp’t.

The trial judge gave this case to the jury upon the simple question of whether the plaintiff had suffered her damages through the neglect of the defendant to discharge its duty to care for the safety of the public streets in respect to that portion of Duane street through an opening in which the plaintiff had fallen.

This was a plain issue upon a sound basis of law, from the determination of which by the jury the defendant is not relieved by the argument and authorities presented by its learned counsel.

The sewer-basin and its cover were constructed in 1876. Granting that the city was not responsible for the action of the water commissioners, either in the adoption of the plan or the actual building of the works, it by no means follows that it could wholly neglect, for a period of fifteen years, to look after the safety of the street so far as it was affected by the structure erected, and remain free from all responsibility. It would seem that the cover or bridge was fit and adequate for many years ; and evidence was given upon the trial to show that its instability had arisen from the ordinary incidents of protracted use. Common prudence dictated that the city, in the exercise of care over its streets, should look after the effects of such use upon a structure quite likely to become dangerous in the course of time; and this duty was equally incumbent where the foothold had been originally constructed by lawful authority as if it had been the work of trespass or the elements.

The trial judge appears to have concurred with the defendant’s counsel in tiis views of the limitations. -upon municipal liability applicable to the case. The case rested, and its trial was steadily conducted, upon the fundamental ground of the defendant’s liability for its own negligence. The jury, thus guided, found the facts sufficient to make out the plaintiff’s case, and we see. no reason why their verdict should be disturbed.

The judgment must be affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.