Farley v. Mayor, Aldermen & Commonalty — 72 N.Y. St. Rep. 264

Majority

p. 264

Lawrence P. Farley, Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.

(New York Superior Court, General Term,

Filed December 18, 1895.)

Headnote

1. Municipal corporations—Fireman—Pension.

Section 519 of the Consolidation Act is in the nature of compensation for the unusual hazard and risk assumed in the employment, and a fireman so disabled, and who accepts retirement on the pension provided, cannot maintain an action against the city for negligence in causing the injury.

2. Same.

Section 1932 of the Consolidation Act, which prohibits driving in the city at a greater rate of speed than five miles an hour, is binding on the fire department.

3. Same.

A fireman, who is injured while driving at an unusual and dangerous speed in a dark street, is guilty of contributory negligence, unless the speed is required in the performance of his duty, and, in that case, the attendant risk is assumed by his employment.

Appeal from a judgment entered on a verdict in favor of plaintiff.

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Francis M. Scott and. T. Connoly, for app’lt ; A. & C. Steckler, for resp’t.

The plaintiff was a fireman, attached to engine company Ro. 20, being driver of the hose cart which formed part of the company’s outfit. On November 20, 1892, upon the receipt v at company quarters of an alarm of fire, at about 1:30 a. m., he got into his seat, and drove towards the fire as fast as he could; going through Marion street into Broome, east towards the Bowery. It was dark, and he could see nothing in front of him. While driving through Broome street the hose cart struck a truck stored upon the street, and the plaintiff was thrown to the ground, sustaining injuries from which he may never recover.' He sued the municipality, and recovered a verdict for $7,500, which, under the circumstances, is not excessive. The action was brought, not on the theory of nuisance, but because of the defendant’s alleged negligence in allowing the truck to remain in the driveway after the expiration of a time sufficient to imply notice to it of its presence there. Assuming that the city would be liable to a person using the highway in a prudent manner, the question remains whether the plaintiff, an employee of one of the departments of the municipality, is entitled to recover under the circumstances. A fireman’s calling is hazardous, and, when he enters the service, it must be assumed that he takes upon himself all the attendant risks. Quickness in getting to fires is the prime essential of effective service, and the dangers incident thereto risks of the employment. That the position is one of danger is manifest from section 519 of the consolidation act, which provides in part as follows:

“In case of total permanent disability, caused in or iuduced by the actual performance of the duties of his position * * * the amount of annual pension to be allowed shall b'e one-half of the annual compensation allowed such officer or member as salary at the date of his retirement from the service,” etc.

The plaintiff availed himself of this provision, and was retired on half pay, viz. $600 a year. If a private individual were injured by the negligence complained of, he would not be cared for in this manner, and the damages recoverable would be his only compensation. The consolidation act (section 1932) prohibits driving in the city at a greater rate of speed than five miles an hour. If a private individual were injured while violating this statute, and the violation in any manner contributed to the injury, no recovery could be had; and if, as in this case, the street was dark, and he could see nothing in front of him, the violation would certainly be calculated to contribute to the accident. It is difficult to conceive any logical reason why the same result should not be reached here.

The next question is whether the statute is binding on the fire department. In Morse v. Sweenie, 15 Ill. App. 486 , the appel- ■ late court of Illinois held that an ordinance of the city of Chicago as to immoderate driving was as binding upon the fire department as upon drivers of ordinary vehicles, and that the law did not recognize any privileged class, such as members of the

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fire or police department of the city, as tpossessing rights so superior to those of other citizens of the state as to exempt the former from the exercise of proper prudence and care in the use of the streets! The question there arose in an action against a fire-marshal who, while driving to a fire, negligently ran into the plaintiff’s team, but the underlying principle decided reaches this contention. If the rule were other than that laid down in the case cited, it would follow that the speed at which a driver drives his horses should be left to that care and caution which the exigencies of the occasion require. Thus, prudence would dictate that in a narrow street, or in a dark or crowded thoroughfare, he should not go with that rapidity warranted in a clear thoroughfare in broad daylight. If the plaintiff disregarded such considerations, he would be plainly negligent; and, if the imprudence would not be sufficient to prevent recovery of damages by him on the theory of contributory negligence, it would be because it is one of the risks incident to his employment, compensated for by section 519 of the consolidation act, supra. If the action had been for creating or maintaining a nuisance in the public highway, of which the plaintiff was unaware, and he had, without fault on his part, run the horses into a pitfall which the municipality had failed to guard, and he had no accepted compensation for the injury, a different question must arise.

ít follows that the defendant’s motion to dismiss the complaint should have been granted, arid the exception to the refusal pre-" sents error for which the judgment and order appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.