Carolus v. Mayor of New York — 19 N.Y. Super. Ct. 15

Majority

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Henry Carolus, Administrator, &c., of Charles D. Bibelga, deceased, Plaintiff and Appellant, v. The Mayor, &c., of the City of New York, Defendants and Respondents.

Headnote

1. While the Corporation of the city of New York were engaged (by a contractor employed for that purpose) m regulating and grading one of the avenues in the upper part of the island already in úse as a highway, and had erected across a valley a narrow embankment to sustain the Croton water-pipes in the center of the avenue, and thereby reduced the carriage-

■ way to the width of a few feet, a foot-passenger, instead of keeping in the carriageway, attempted to pass along the narrow embankment, and fell, and was so injured that he died: Held, that the Corporation were not responsible for the injury.

2. The fact that other persons used the top of this embankment as a footpath does not .affect the question, when it appears it was not erected for that purpose nor intended to be used as a foot-path and was dangerous, and the carriageway could be used with but slight inconvenience.

3. While making lawful public improvements in the streets or highways, the Corporation are not responsible for an injury sustained through the heedless neglect of ordinary care by a traveler or passenger.

(Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)

Heard, December 8th, 1859;

decided, January 7th, 1860.

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This action was "brought by the plaintiff, as administrator of the goods, chattels, &c., of one Charles D. Bibelga, to recover damages, (by virtue of the statute authorizing the administrator, in such case, to maintain an action,) by reason of an injury received by the intestate, when walking along the Eighth avenue, in the city of New York, from falling off an embankment, which injury caused his immediate death. The complaint charged that it was the duty of the defendants to keep the said avenue in repair, and in good order and condition, as a public highway; that they, on the contrary, caused high embankments and dangerous precipices to be built therein, rendering travel thereon extremely dangerous to persons lawfully traveling thereon; and that the intestate, while so traveling, was, without any fault or neglect on his part, thrown, precipitated and fell from one of said dangerous precipices about thirty feet upon rocks, stones and water, whereby he was so bruised, mangled and crushed, that he immediately died of said wounds.

The Eighth avenue, according to the plan according to which, the island above the settled portion of the city is laid out for future improvement, extends northerly to the Harlem river, and although not graded, it has been an open traveled highway for twenty years past. It is, according to the said plan, intended to be one hundred feet wide, as used, worked and macadamized, it was much narrower, it had a carriage path only, and its surface conformed in general to the uneven face of the country through which it passed. From the point where 74th street ( according to the plan of the city) will,- when opened, cross the avenue, to that where 79th will cross it, is very low ground, and the carriageway had been built up, and embanked by a stone wall ten or fifteen feet above the natural surface of the ground.

In 1854, the defendants determined to grade the avenue, from 59th to 86th street, leveling elevations and filling in depressions, so as to make the avenue conform to a permanent grade designated on a profile, which was placed on file,— and in this grading to make the avenue of its full width, (100 feet,) with carriageway and sidewalks on the proper level; and for that purpose entered into a contract with one Fredericks to do the work, the contractor agreeing to leave a passable carriageway during the regulating of the said avenue. The new grade was

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at the low ground above-mentioned, nearly thirty feet above the natural surface of the ground.

During the progress of the work, it was desired to lay the Croton water pipes along the avenue for the distribution of water, an embankment was raised at or about the center of the avenue, across the low ground aforesaid, of width barely sufficient to sustain the pipes, and of a height nearly equal to the new grade, and the pipes being laid, earth was thrown thereon about three feet in width at the top, and this embankment was sustained by a stone wall nearly perpendicular on the west side thereof About midway and in the center of the embankment, at the top, was placed a pipe (or man-hole) from the pipes below, extending up a few feet above the top and to the line of the permanent grade, to furnish means of access to the pipes after the avenue should be finished, and the earth was extended so that the top of the embankment was there a little wider than elsewhere.

On the erection of this embankment, the carriageway, which was, to a great extent, occupied thereby, was turned to the east, and was only about nine or ten feet wide, so that travelers in vehicles, on reaching this valley, turned a little towards the east side of the avenue, and kept along up the level of the old, macadamized road until the valley was passed.

But persons on foot were in the habit of walking on or over the Croton water pipes, on the narrow top of the embankment.

There was no pretense that the embankment was constructed for a foot-path, but only to sustain the pipes, and the pipes were covered with earth, not in order to make a foot-path thereon, but only to protect the pipes themselves, until the grading of the avenue should be completed; foot travelers were, nevertheless, wont to use this embankment as a foot-path, it being much less convenient to descend and keep the carriageway, especially, because it was very narrow and muddy.

This was the condition of the avenue, in October, 1857, when on the Sabbath (October 4th) the plaintiff’s intestate, (a cigar maker,) who lived in the eastern part of the city, near the corner of Avenue A and Eighteenth street, visited, as he had often before, a grocery, at the corner of Eighty-Sixth street and the Eighth avenue, to sell cigars, and also visited certain gardens in the vicinity; he remained until'about nine o’clock at night, and'

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then, in company with an acquaintance, started to come to the city, walking down the Eighth avenue; when they reached the embankment referred to, they continued along the center of the avenue, on the top of the embankment, and, in attempting to pass around'the man-hole, the intestate fell off the embankment, among stones and water at the bottom, and was killed. Eighty-Sixth street was an open traveled street, and through that and the Bloomingdale road or through the Third avenue there were other ways of returning to the city entirely free from obstruction.

Upon facts substantially as above proved, without contradiction, at the trial, which was had before Mr. Justice Slossom, on the 25th of May, 1859, the complaint was dismissed. The plaintiff1 appealed to the General Term.

J. W. Gilbert., for plaintiff (appellant).

I. The defendant is clearly liable, unless the deceased negligently exposed himself to the injury which destroyed his life. This liability results—

1. From the positive act of the defendant in causing the erection of the embankment, and leaving it at night without a light or anything to warn a passer of the danger, thereby creating a nuisance. (16 N. Y. R., 172, note.)

2. From the implied contract on its part to keep the streets of the city in repair, and in a safe condition. (Furze v. The Mayor, 3 Hill, 612 ; 16 N. Y. R., supra; Rochester W. L. Co. v. The City of Rochester, 3 Comst., 464; Hutson v. The Mayor, 5 Seld., 163; Lloyd v. The Mayor, 1 id., 369; City of Buffalo v. Holloway, 3 id., 493; Storrs v. The City of Utica, 17 N. Y. R., 104.)

3. From the fact that it provided the erection in question as a means of passage, and invited the public to use it, although it was unsafe.

It needs no argument to prove that such an erection is a nuisance. It is so because it detracts from the safety of the public. (Dygert v. Schenck, 23 Wend., 446 ; Clark v. Kirwan, 4 E. D. Smith, 23; Congreve v. Smith, 18 N. Y. R., 79, 84; 16 id., 172.)

And a corporation is no more exempt from liability in case it creates a nuisance, either public or private, than are individuals. (16 N. Y. R., 172, and cases, supra.)

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Nor can there be a doubt that, although the Corporation had the right to grade and improve the street, and to lay down the pipes, yet whenever it assumes to exercise its corporate powers, it is bound to see that due care and caution are used, to avoid injury to individuals. (Cases, supra.)

II. The liability above stated remains unaffected by the circumstance that the work was let out by contract. (Hickok v. Plattsburgh, 16 N. Y. R., 161; Storrs v. Utica, 17 id., 104.)

III. The Croton Aqueduct Board are the agents of the corporation, and the latter is liable for their acts and negligence.

(Bailey v. The Mayor, 3 Hill, 531 ; S. C., in Court of Errors, 2 Denio, 433 .)

IV. No question as to the negligence of the deceased can properly arise upon the evidence in this case.

1. It was argued at the trial, and so ruled by the court, that the deceased was negligent in using the causeway instead of the narrow road below. The answer to this is threefold:

(a.) There is no proof that the deceased knew of the existence of this road, or that he was ever on the spot before.

(b.) It was clearly proved that deceased trod the beaten track, and in doing so was led directly upon the causeway.

(c.) The entrance to the narrow road was shut off from view, by a pile of stones, and no guide to it had been provided, nor had any precaution been taken to warn passers of .the danger of the. causeway. And the accident happened at night.

2. The evidence shows that the causeway had been used by foot-passengers for a long time, and was kept in order for that purpose, by the corporate authorities.

3. The narrow road was not of sufficient width to allow of its being safely used by foot-passengers.

4. No adequate cause for the accident appears, other than the dangerous character of the causeway, and the neglect of the Corporation to provide safe means of transit, or to warn passers of the danger before them. This negligence, on the part of the defendant, and all the circumstances of the accident, therefore, excluded the idea of a want of due care on the part of the deceased, and prima facie established the plaintiff’s right to recover. (Button v. Hudson River Railroad Co., 81 N. Y. R., 248: and cases cited.)

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V. In any view, the questions of negligence should have been submitted to the jury, and the court, therefore, erred in directing a nonsuit.

VI. The fact that the accident occurred on Sunday constitutes no defense.

1. The deceased was not in the violation of any of the prohibitions of the statute. (1 R. S., 675.)

(a.) He was not “ traveling,” in the sense in which the term is used in the statute. The word evidently means the going from one town or city to another. Such was the case, 10 Metcalf, 363. The deceased was going home, after a visit to a friend. The legislature, certainly, never intended to prohibit the visit or the return.

2. Nor is it material that he had a short time before sold some cigars.

(a.) Such a sale is not prohibited. (Boynton v. Page, 13 Wend., 425 .)

(b.) If it were it would work no disfranchisement.

3. In any view it is no answer to the action. (Mohney v. Cook, 26 Penn., 349 ; Abraham v. Staten Island Ferry Co., MS.; Norris v. Litchfield, 35 N. H., 271 .)

The case in 10 Metcalf may be reconciled, upon the principle of the non-liability of town officers. (Hutson v. The Mayor, 5 Sand., 289; 16 N. Y. R., supra.)

G. Dean, for the defendants (respondents).

I. The complaint was properly dismissed, because the deceased was himself guilty of negligence, which contributed to the accident which resulted in his death.

1. The place on which he attempted to walk was not constructed for the purpose of a passage-way or road.

2. Of this fact he had notice:

Eirst, by the character of the embankment itself, twenty-five feet high, perpendicular, stones below.

Second, by the iron pipes on which he had to walk, to get to the place where he fell.

Third, by what is called the man-hole, elevated in the center of the aqueduct, and in attempting to pass which the accident occurred.

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Fourth, by a pile of stones placed in front of the carriageway at Eighty-Second street.

3. The defendants had constructed a place for deceased to walk, viz., the carriageway, and on which he could have traveled safely. If he chose to take the embankment instead of the road, he did so at his peril and in his own wrong.

4. The notice of the character of the place on which he was walking was continued at every step, and it is shown that, on account of his prior visits to the neighborhood, he was not a stranger to the locality.

II. The facts being undisputed, there was no'question to be left to the jury. These facts raised a question of law for the Court only; and the requests of plaintiff’s counsel to submit to the jury any of the questions, were properly denied. (Pratt v. Hull, 13 John., 334 ; Stewart v. Simpson, 1 Wend., 376 ; Jansen v. Acker, 23 id., 480 ; Rudd v. Davis, 3 Hill, 287 .)

1. Dismissing complaint is equivalent to a nonsuit. ( 2 Duer, 50 ; 6 How., 218 .)

HI. The complaint was properly dismissed, because the death of deceased was caused by his own violations of the laws of the State then in force for the “prevention and punishment of immorality and disorderly practices.” (R. S., part 1, tit 8, ch. 20.)

This statute makes it unlawful for any person to expose for sale any wares or merchandise on Sunday. This deceased had violated, and was returning home with the wages of his sin upon him.

The same article makes it unlawful for any person to frequent a tippling-house on Sunday; this deceased had done, and had tarried hours at the bar of an unlicensed grocery, and the accident which followed is the legitimate penalty of such practices.

The same article makes it unlawful for “ any person to travel on Sunday, unless in cases of charity or necessity, or in going to or returning from some church or place of worship.”

There is no pretense that deceased was within any of the exceptions of the statute; this being the fact, the plaintiff who represents him has no right to invoke the aid of a court of law for any loss or injury sustained by the deceased while violating the law.

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1. This rule has been applied to a statute identical with our own, in Massachusetts.

2. The same principle prevents a person engaged in an illegal vocation from maintaining an action for libel, on account of a publication in reference to his conduct in that vocation. (Hurst v. Bell, 1 Bing., 1; Yrissari v. Clement, 3 id., 432; Starkie on Slander, vol. 2, p. 87.)

3. It is this principle which is recognized in the maxim, so often quoted, that a plaintiff must come into court with “ clean hands.”

IV. There is no pretense for saying that the laws for the observance of Sunday are obsolete. On the contrary, our written constitution reenacts the legislative provisions then in existence, and recognizes the “ right and necessity of prohibiting acts of licentiousness, and justifying practices inconsistent with the peace and safety of the State.” (Art. I., §§3, 17.)

1. Not only have the Legislature the right, but it is its duty, to provide laws for the observance of the Christian Sabbath.

2. The courts are bound to enforce these laws, by applying to persons who suffer loss in violating them, the principles applicable to other violators of law, not only the statute penalties, when suits are brought against them, but a denial of redress, when injuries result to offenders from such violation. (8 J. R., 290; 11 Serg. & R., 394 , 403, 405.)

The intestate came to his death by heedlessly using as a path, an embankment of about two or three feet in width, raised by the contractors for regulating the Eighth avenue; never intended, designated, or by any implication used or authorized to be used as a foot-path, by the defendants,- or any one under them. It is shown that the carriageway, which he could have used, was no. more than inconvenient; no risk was encountered by pursuing it, which very slight care would not avoid: none, it seems, could occur, except in meeting carriages. It was from nine to twelve feet wide. There were other safe and not inconvenient modes of getting to his house. (18 N. Y. R., 427.)

We think the dismissal of the complaint was right, and the judgment should be affirmed, with, costs.

. Ordered accordingly. -