Whalen v. Gloucester — 11 N.Y. Sup. Ct. 24

Majority

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MARGARET WHALEN, Respondent, v. ELIZABETH A. GLOUCESTER, Appellant.

Headnote

ggOwner of real estate — liable for injuries resulting from- its dangerous condition — Cover over bole in sidewalk—persons interfering with sidewalk liable for injwries resulting from such interference.

The owner of property which is in a dangerous condition when it is leased, is responsible for injuries resulting to a third person by reason of such owner’s ' failure to put the property in proper condition.

A cover to a hole in a sidewalk becomes a part of the highway, and must be as secure as the walk itself.

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A person who interferes in any way with a sidewalk in a city, and leaves it in a dangerous condition, is liable for injuries caused thereby, whether he knew it to be dangerous or not, and irrespective of any permission from the public authorities to do the work from which the injury arises.

Appeal from a judgment entered upon the verdict of a jury.

F. P. Bellamy, for the appellant.

Evidence of condition of coal-hole previous to time of accident is clearly inadmissible to charge the defendant, unless it is proved that defendant was in possession or had knowledge of the alleged defect, and was guilty of some negligence. (City of N. Y. v. Corlies, 2 Sandf., 301 ; 36 N. Y., 153 ; Galt v. Gandy, 22 Eng. Law and Eq.; 14 Gray [Mass.], 249 ; 35 N. Y., 269 .) The presumption of law is (even in an action by third party for damages occasioned by neglect to repair a building) that the tenant is bound to repair, and therefore that landlord is not liable for neglect tó do so, especially when tenant is in possession under covenant to repair. (Cheetham v. Hampton, 2 Durnford & East [Court of King’s Bench], 186-189; Regina v. Sir John Ruckwall, 2 Lord Raymond, 804; City of New York v. Corlies, 2 Sandf., 301 ; 4 E. D. Smith, 20; 2 H. B. L., 349; 14 Gray [Mass.], 249.) There being no wrongful act to be inferred from building coal-hole and cover similar to others in the city, and no evidence that it was not well built, and no neglect being proved, defendant not even knowing of alleged defect previous to accident, there can be no presumption of liability from mere fact of cover of coal-hole being out of order. ( 36 N. Y., 153 ; id., 54; 3 Abb. Pr. [N. S.], 240; 34 How., 250 ; 59 Barb., 497 ; 12 N. Y., 236 .)

A. R. Dyatt, for the respondent.

Where a person makes any opening or excavation into or beneath a public highway, for his own convenience, he is bound to see that at all times it is so protected as to be absolutely safe for passengers; and this entirely apart from any question of negligence. ( 37 N. Y., 568 , 574; S. C., 16 Abb., 241 , in court below ; 5 Trans. Appeals, 254; 1 Robertson, 238, 245; 18 N. Y., 79 , 84; 38 id., 449 ; 28 Barbour, 196.) Nor can such a person escape liability for a failure to perform his duty to keep the highway safe, by throwing the burden upon some other person through the medium of any agreement between himself and

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such other person. (1 Robertson, 238, 245; 17 N. Y., 108 ; 32 Indiana, 45; Chicago v. Robbins, Am. Law Reg. [N. S.), vol. 11, pp. 535, 536, 537; State v. Dover, 47 N. H., 452 .)

The plaintiff in this action was severely and permanently injured by the upturning of a coal-slide cover, on the sidewalk of the defendant’s premises, which was neither fastened by a chain- nor securely rested on its bed. The plaintiff, in alighting from a carriage, on. the 25th of May, 1868, put her foot upon the cover, it turned, and her leg went down the hole or slide, and she was severely cut by one of the prongs or plugs forming a part of the cover. The premises were at the time in the possession of the defendant’s tenant, and had been for several years previously. On the 1st May, 1868, however, he renewed his lease of the premises, at which time, or rather previous to which time5 and in the March preceding that date, the defendant, by the agreement' of renewal, was to put the house in good order, and the tenant was to keep it in that condition. There was evidence given, showing that the cover had been in a dangerous state for months prior to the 1st of May, 1868, one of the three prongs necessary to keep it in its place having been broken at that time. The witness who gave that evidence, also testified that he slipped over it himself, and saw that there was .one plug off. I was, he said, nearly falling in. It was also shown that" the defendant knew a child had been injured or endangered at the cover. Mr. Reiser, one of the plaintiff’s witnesses, who* went- to see her on. behalf of the plaintiff, detailed a conversation with her, in which he said, among other things, that a child had been injured at the same place; to which she said: “ Oh, no, the child was not injured; the child was not hurt at all.” It is true that the defendant- denied having had any conversation about a child, but the testimony was positive on the part of the witness. The defendant did not deny the statement of her tenant, that she agreed to put the house in good order, or have any repairs done; nor did she show any permission to, use the cover obtained from the city authorities. It seems to have been conceded on the trial, however, that it was placed where it was by proper license for that purpose. Some exceptions

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to the introduction of evidence were taken during the trial, and an exception also taken to the charge. The, presiding judge placed the - defendant’s liability chiefly upon the proposition, that, if the covering of the vault or slide was in an insecure condition, at the time the tenant went into possession, on the 1st of May, 1868, under the new tenancy, she was responsible for the injuries received by the plaintiff. The accuracy of this view is now presented for consideration. The liability of the mayor, aldermen and commonalty in such a- case as this has been settled,^[6] although the cover may have been manufactured after their regulations on the subject, and for the reason that it is their duty to see to it that the covers are secure and kept so. The only proviso limiting such responsibility is, that the mayor, etc., shall have actual or constructive notice of the defect of the cover, or of its insecurity. Assuming, and the assumption is for her benefit, that the defendant had permission to use the cover as provided by the ordinances,^[7] the use of it necessarily imposed upon her the obligation to keep it in repair, fit for the pui'pose, and perfectly safe—as safe as the street itself should be—for the passer by. A cover becomes a part of the highway or walk, and must be as secure to the wayfarer as the walk itself. The public are not called upon to examine ordinances relating to such a subject, or to do police duty, or to stop and examine the vault or slide covers. They have a right to assume that they are safe, unless it is apparent, and without examination, that they are not.^[3] The defendant, having sought permission to use the street or walk for her private benefit, took upon herself, in reference thereto, all the obligations imposed by law upon the corporation. She assumed a duty to the public, and must bear the burden.^[4] It is a well settled rule, said Foster, J., that a person who interferes in any way .with a sidewalk in a city, and leaves it in a dangerous condition, is liable for injuries caused thereby, whether he knew it to be dangerous or not, and irrespective of any permission from the public authorities to do the work from which the injury arises.^[5]

‡ ‡ Reinhard v. The Mayor, supra.

§ § Jones v. Chantry, 4 N. Y. Sup. Ct. Rep., 63; Radway v. Briggs, 37 N. Y., 256 .

|| || Sexton v. Zett, 56 Barb., 119 ; Davenport v. Ruckman, 37 N. Y., 568 ; Congreve v. Smith, 18 id., 79.

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There is, however, another view to be taken of this case, which presents the theory upon which the defendant was held to ‘be liable on the trial. It. appeared, and the jury so found, that the covering was in an insecure condition — out of repair — when the new term of the defendant’s tenant began, and had been so prior to that time; and that fact was sufficient' to cast upon her the obligation, to remunerate the plaintiff for her injuries. The principle has been „ decided.^[6] The defendant, it appeared in that case, leased a pier to another, the lessee agreeing to keep the same in repair. At the time of leasing, there was a defect in the pier, in consequence of which the plaintiff’s intestate received injuries from which he died. " The accident happened after the lessees had taken possession. Held, that the defendants were liable for the injury. In Davenport v. Ruckman,^[7] the defendant Ruekman, the action being against him and the mayor, aldermen, etc., of this city, was, it appeared, the owner of a house built on leased ground. He had allowed the cellar-way to become and remain in a dangerous condition. He had sublet the premises, agreeing to put them in repair, but he failed to do so, and they were therefore in a dangerous condition when the tenant took possession. It was held that this did not operate to relieve the defendant from his liability. It simply added another party to the. negligence. It seems to be clear, therefore, that the defendant is liable on both theories herein presented, namely, upon her obligations to the public in her use of the street for her private purposes, and upon her failure to keep the premises in repair, as between her tenant and herself, even if such relation of landlord and tenant, and the consequent possession of the latter, might otherwise excuse her.

The evidence relating to the condition of the plaintiff’s health, and to the appearance of the tumor and its cause, was properly received. She had a right to show all the circumstances attendant upon, and the result of, the injuries received. The exceptions thereto were not well taken. The evidence of the condition of the covering prior to the accident, was properly admitted, bearing, as it did, upon the question whether the defendant had put the premises in order, at or immediately prior to 1st May, 1868.

The exception to the judge’s charge, that the defendant was

* Swords v. Edgar et al., 1 N. Y. Sup. Ct. Rep., addenda, 23.

† † Supra.

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liable if the defect existed on the first May, was not well taken, for the reasons hereinbefore assigned. There is nothing, therefore, contained in the case which calls upon us to reverse or interfere with the judgment, and it must be affirmed.

Present — Davis, P. J., Daniels and Brady, JJ.

Judgment affirmed.

Footnotes

* Reinhard v. The Mayor, 2 Daly, 243 .
† † See Revised Ordinances of 1845, chap. 18, p. 251.