Davenport v. Ruckman — 23 N.Y. Super. Ct. 20

Majority

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Clara A. Davenport, Plaintiff and Respondent, v. Elisha Ruckman et al., Defendants and Appellants.

Headnote

1. A municipal corporation, possessing the legal power, and furnished with the means, to construct and keep in repair highways and streets within their jurisdiction, are liable to every one who may be injured by their neglect to repair defects therein after notice.

2. No distinction exists between sidewalks and carriage-ways, in respect to the duty of the Corporation of the City of New York in this respect.

3. Such City Corporation are liable for injuries sustained by means of an unguarded and uninclosed excavation or area, made within the bounds of the highway, by a private individual, which such Corporation fail to guard or repair, within a reasonable time after notice of its existence and unprotected state.

4. Notice to them of the existence of such excavation may be inferred by its continuance undisturbed for a long time.

5. A person of impaired vision, who still has sufficient power of sight to go with reasonable confidence of safety through the streets, if kept in such condition as it is the duty of the Corporation to keep them, may recover for injuries sustained by reason of an excavation which a person of good sight might have avoided.

'6. One who comes into possession of premises, attached to which there is an •excavation encroaching upon the highway, may be regarded as so sanctioning it, as to be liable for an injury sustained by a passer-by in consequence of it.;

7. The fact that before the accident he had leased the premises to another person does not alter the case.

(Before Moncrief, Robertson and Monell, J. J.)

Heard, October 14;

decided, November 29, 1862.

The exceptions, taken on the trial of this cause before Mr. Justice White and a Jury, on the 11th of April, 1862, were by him directed to be heard in the first instance at the General Term, and judgment meanwhile to be suspended.

The action was brought by Clara A. Davenport against Elisha Ruckman and the Mayor, Aldermen and Commonalty of the City of Hew York, to recover damages for injuries .sustained by the plaintiff in falling into an excavation made in the sidewalk of a public avenue, in the City of Hew York, and not sufficiently guarded, in front

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of a building on such avenue, of which the defendant Ruckman had a lease.

The excavation in question was an area or cellar-way, below the level of the pavement, extending on the sidewalk six feet in front of the line or side of the street, with descending steps, to a cellar-way in the front wall of the building. It was not covered or railed in at the time of the accident, and had been in the same condition for some time previous. It had been once inclosed by wooden doors, and at another time by an iron railing, which had long previously been removed.

The defendant, Ruckman, did not make the excavation, but was the assignee of a lease for twenty-five years, of the premises behind it, into which the steps in it led, and by such lease became owner of the buildings to be erected during the term. They were occupied at the time of the accident by a tenant of his, (Lamb,) who with him agreed to put the premises in repair. The defendant, Ruckman, never repaired the premises, was frequently there to collect his rents, and paid his own.

The plaintiff’s organs of sight, at the time of the accident, were affected by disease, so as to diminish her powers of vision considerably, yet she could distinguish persons and colors, and “objects having a distinct outline.” Just previous to the accident, she had encountered other risks of accident from defective vision.

A verdict having been rendered for the plaintiff with damages, various exceptions taken on the trial were ordered to be heard first at General Term.

One exception was taken to a refusal to dismiss the complaint and others to instructions to the Jury, and refusals to charge as requested.

The counsel for the defendants, the Corporation of the City of New York, requested the Court, among other things, to charge, in substance, in reference to their duty, as follows:

First, They were not bound to see that such an open

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ing as that into which the plaintiff fell was closed in the daytime.

Second, They were not bound to see that the streets were in such a condition as to be safe for a blind person to pass without a guide.

Third, They were not liable, unless the opening into which the plaintiff fell was of such a character as to have been dangerous to persons in possession of their sight, and exercising ordinary care.

And, in reference to the conduct and negligence of the plaintiff,

First, She was bound to use more than ordinary care in passing along the sidewalk.

Second, It was negligence for her to walk upon the sidewalk without a guide, if she was unable to determine for herself whether it was free from obstructions or excavations.

The counsel for the defendant, Ruckman, requested the Court to charge the Jury, in substance, among other things, in reference to his liability for the injury to the plaintiff: (1.) That he was not in possession of the premises at the time, but his tenant, Lamb, was, who had been so for six days before the date of the lease to him, and was bound by his lease to keep the premises in repair; (2.) That Lovett or Mitchell owned them in fee; and, (3.) That the defendant knew- nothing of the removal of a railing adjoining the excavation in question, and was prevented from repairing by Lamb; and also in reference to the condition of the excavation, that the plaintiff could not recover, unless a person with ordinary vision, using ordinary care and prudence, passing along the sidewalk in broad daylight, would be unsafe or liable to be injured from the unsafe condition of the area; and, lastly, that the plaintiff was guilty of negligence in going into a public street in her condition.

The Court instructed the Jury, as to the duty of the Corporation in reference to excavations of this kind, that it was “their duty to see that places of that description

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“were kept in a safe condition;” there was in an ordinance passed by them, “an implied permission to construct them in the manner prescribed,” and when made with such permission, they are “responsible for injuries “necessarily resulting from them.” “It is their duty to “see that such places are'maintained in a proper and safe “ condition;” and, in reference to their being chargeable with notice of “the dangerous condition of any such opening,” that “if it had been a recent occurrence * * * an express “notice of some kind” to them “would be required; but “ where the dangerous condition of the street or sidewalk “has continued for a long space of time, such express “notice is not necessary.” They “may be reasonably “presumed to have become acquainted with the condition of the street in this particular.” They have “ample means and every facility secured to them for fulfilling their duties and seeing that all dangerous places “in .the public streets are properly- guarded; they are “bound to fulfill that duty, and if they neglect it are to “be held responsible.”

In reference to the plaintiff’s negligence in going into the street, unattended, in the actual condition of her organs of sight, the Court charged the Jury, “that the circum- “ stance that she was partially blind, and fell into this “opening in the daylight,” was not “ of any importance,” (to which the defendant’s counsel excepted.) The question was “ whether it was so improper and imprudent for “the plaintiff to have gone into the street unattended in “her then condition of sight, that it would be negligence “on her part to do so.” But if she “possessed sufficient “sight to give her reasonable assurance that she might “travel the streets safely, while they were in a good and “proper condition—in the condition in which the defendants were bound to maintain them—she would not be 1 guilty of negligence in going abroad unattended.” “ The 1 assumption in law must be that the streets are in good condition, and the question to be determined by the Jury ‘ was, had the plaintiff sight enough to go with reasonable

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“assurance of safety through the streets,” if they were kept in good condition. To these instructions the defendants’ counsel excepted.

The Court instructed the Jury also, that the defendant, Euckman, was to be considered the owner of the house, and it was “his duty to provide proper guards for the “ opening and see that it was safely kept,” also to “have “ it in a safe condition at the time the house passed from “him to his tenant,” and “he was responsible, whether “allowed to put it in repair afterwards or not,” if the premises “ were in a bad, unsafe condition before he gave “ it to his tenant and placed the property out of his con- “ trol negligently or carelessly.” To these instructions the defendant Ruckman’s counsel excepted.

Other exceptions are referred to in the opinion of the Court.

E. T. Gerry and W. Curtis Noyes, for plaintiff.

I. A cause of action against the Corporation of the City of New York was fully made out, and, upon the evidence, they were clearly liable. (Citing 1 Chitty on Pl., 77; Mayor of Lynn v. Turner, Cowp., 86; Riddle v. Proprietors of Locks, &c., 7 Mass. R., 169 ; Goshen Turnpike Co. v. Sears, 7 Conn., 86 ; Bailey v. Mayor, &c., of N. Y., 3 Hill, 531 ; affirmed, 2 Denio, 433 ; Grant on Corp., 501; Kent’s Charters of N. Y. City, 99, 100, 235-239; Wilson v. The Mayor, &c., 1 Denio, 596 , and 601, per Beardsley, J.; The Mayor, &c., v. Furze, 3 Hill, 612 , and 615, per Nelson, Ch. J., and cases there cited; Hutson v. Mayor, &c., of N. Y., 5 Seld., 163; Rochester White Lead Co. v. City of Rochester, 3 Comst., 463; Weightman v. Corporation of Washington, 1 Black, U. S. R., 39; Dargie v. Magistrates, &c., of Forfar, 27 Scottish Jur., 311; Innes v. Magistrates of Edinburgh; Morison’s Dict. of Decis., 13,189; Hay on Liab., 1, 214.)

II. The Corporation, by the passage of an ordinance imposing the duty of keeping such areas securely guarded, upon the owners of property, did not thereby exempt

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itself from liability, as it could not delegate its duties to others. (Revised Ordinances of 1859, p. 258, §§ 12, 13, 14; Wallace v. The Mayor, &c., 2 Hilt., 440; S. C., 9 Abbotts’ Pr., 40; 18 How. Pr., 169 ; Storrs v. City of Utica, 17 N. Y. R., 104; Conrad v. Trustees of Ithaca, 16 Id., 158.)

III. Nor was it necessary to show affirmatively actual notice, because, upon the evidence, and as matter of law, such notice will be presumed. (Wallace v. The Mayor, supra.)

IV. In any aspect of the case the defendant, Ruckman, was liable for the injuries sustained. (Taylor’s Landlord and Tenant, §§ 178,192; Ex parte Saffron Hill, 18 Jurist, 1104; Cheetham v. Hampson, 4 Durnf. & East, 318; Quarman v. Burnett, 6 Mees. & Wels., 499; Rich v. Basterfield, 11 Jurist, 697, and cases there cited ; Daniels v. Potter, 4 C. & P., 262; Hounsell v. Smyth, 7 Com. Bench, N. S., 730, 745; Proctor v. Harris, 4 C. & P., 337; Hardcastle v. South Yorkshire R. R. Co., 4 Hurl. & Nor., 74; Congreve v. Smith, 18 N. Y. R., 79.)

V. There was no evidence of any negligence on the part of the plaintiff to bar her right to recover. (Dargie v. Magistrates, &c., of Forfar, 27 Scottish Jur., 311; Hay on Liab., 208, 215; Regina v. Train, 3 Fost. & Fin., 22; The Same v. United Kingdom Teleg. Co., Id., 73.)

VI. The exceptions taken by the defendants to the admission of evidence in regard to the sale of the book in which she was engaged, were not well founded. (Sedgw. on Dam., 554-556, and cases cited in notes; Caldwell v. Murphy, 1 Duer, 233 ; S. C., affirmed, 1 Kern., 416.)

VII. The defendants were properly joined in this' action as such, for their joint negligence caused the injuries complained of. (Colegrove v. N. Y. & N. H. R. R. Co., 20 N. Y. R., 492.)

H. H. Anderson, for defendants, the Mayor, &c., of N. Y.

I. The Court erred in refusing to nonsuit the plaintiff, for she was not free from fault.

II. The Court erred in refusing to charge, that the plain

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tiff was bound to use more than ordinary care in passing along the sidewalk. Also, that unless the opening into which she fell was of such a character as to have been dangerous to a person in possession of his sight and exercising ordinary care, the defendants, the Corporation, are not liable. Also, that if she was unable to determine for herself whether the sidewalk was free from obstructions or excavations, it was negligent for her to walk upon it without a guide. Also, that the Corporation of New York is not bound to see that such an opening as that in question is closed in the daytime. Also, that the Corporation is not bound to see that the streets are in such a condition as to be safe for' blind persons to pass along them without guides.

The Court also erred in charging, that the circumstance that the plaintiff was partially'blind, and fell into the opening in the daylight, was of" no importance. And that the only assumption which the defendants could require the plaintiff to act upon was, whether her sight was such as to give her a reasonable assurance of safety in traveling through the streets.

This makes the defendants responsible for the plaintiff’s erroneous judgment. The- Jury, probably, based their verdict upon the ground, that the plaintiff herself thought that her sight was good enough—that she had, in her own mind, such an assurance as the Court has described; but the event proved that she was mistaken.

E. A. Doolittle, for defendant, Ruckman.

I. The Court erred in refusing to dismiss the complaint. The evidence shows, beyond a question that plaintiff was negligent in going along a public street without a guide-while her. vision was so much impaired.

II. The Court erred in charging the Jury, that the circumstance that the plaintiff was partially blind, and fell into the opening in the daylight, need not be taken into consideration as against her right to recover. (Butterfield v. Forrester, 11 East, 60; 23 How. Pr., 166 ; 19 How. Pr., 199 ;

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Johnson v. H. R. R. R. Co., 20 N. Y. R., 65; Button v. H. R. R. R. Co., 18 Id., 248 ; Daniels v. Potter, 4 C. & P., 262; Button v. H. R. R. R. Co., 4 Smith, 248; Willetts v. Buffalo R. R. Co., 14 Barb., 585 .)

It has repeatedly been held negligence to suffer an infant of tender years to be in or upon a public street unattended. (Hartfield v. Roper, 21 Wend., 615 ; Lehman v. City of Brooklyn, 29 Barb., 234 ; see also Button v. H. R. R. R. Co., 18 N. Y. R., 248.)

III. The Court erred in charging the Jury, that Buck-man was the owner of the house.

IV. The Court erred in refusing to charge as requested. (Cheetham v. Hampson, 4 T. R., 318 ; Regina v. Bucknall, 2 Lord Raym., 804; Payne v. Rogers, 2 H. Bl., 350; 5 Abbotts’ Pr., 91; Mayor v. Corlies, 2 Sandf., [S. C.,] 301; Howard v. Doolittle, 3 Duer, 464 ; Taylor’s Land. and Ten., 95, 96, 101.)

V. The Court erred in charging, that it does not appear that Lamb at any time refused to allow Ruckman to put the premises in repair.

VI. Again, it was erroneous to charge that if plaintiff possessed sufficient sight to give her a reasonable assurance that she might travel the streets safely, while they were in a good and proper condition, she would not be guilty of negligence in going abroad unattended. The question of negligence does not depend upon the degree of assurance felt by plaintiff’s mind.

The Court erred in charging as to the liability for non-repair. There is a distinction between erecting a nuisance, and leasing it to be continued and failing to repair. If Lamb was to repair, as we claim he was by the terms of his lease, then Ruckman was not liable. (See cases above under IVth Point.)

There is no evidence that the railing was originally deficient or insecure. It may have been the result of an act of violence, and Ruckman should have had notice. (McGinity v. The Mayor, 5 Duer, 674 .)

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Ruckman did not erect" the house, nor did he remove the cellar doors, or erect the railing, and, therefore, was not liable. (2 Salk., 460.)

If the railing was up, it does not follow, because it was loose, that it was not a sufficient protection for the time when Lamb went into possession.

A landlord is in no case bound to repair, unless by force of an express contract or covenant. (Howard v. Doolittle, 3 Duer, 464 ; Cleves v. Willoughby, 7 Hill, 83 .)

Much less was he bound to make the railing so permanent that it should continue good for all time, nor is he to be charged with negligence, unless the defect is brought to his knowledge. (McGrinity v. The Mayor, ubi sup.)

One cannot be liable for the faults of another, unless he is master or principal of such other. (4 Seld., 222; 2 Id., 403; 1 Kern., 432 ; 5 Bosw., 445 ; 5 Duer, 495 ; 24 Barb., 355 ; 26 Id., 618.)

The Court erred in refusing to charge as requested by the counsel for both defendants.

The grounds of liability of the two defendants are so different as to require a separate examination. As regards the Corporation of the City of Hew York, it has been fully established in this Court, that they were liable to keep the streets in repair, as a municipal body to whom certain franchises were given by their charter, (Hutson v. Mayor, &c., of N. Y., 5 Sandf., 289 ,) and therefore responsible for injury caused by their failure to do so. Every objection to their liability was fully urged in the dissenting opinion then given, yet the Court of highest resort, on an appeal from the judgment then rendered, fully confirmed the views then taken, and the learned Judge who delivered the opinion of such Court, in that case, (5 Seld., 163,) after referring to the cases of The Mayor, &c. v. Furze, ( 3 Hill, 612 ,) Adsit v. Brady, ( 4 Hill, 630 ,) and Rochester White Lead Co. v. City of Rochester, (3 Comst., 564,) even seemed to think that there was no difference between a liability for negligence

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in constructing and for negligence in not keeping in repair.

A similar principle had been recognized in a previous case, (Hickok v. Trustees of Plattsburg, 16 N. Y. R., 161, note, opinion of Denio, J.,) in the same appellate Court, reversing, upon apparently the same grounds, a decision of the Supreme Court, in that case, ( 15 Barb., 427 .) The corporate powers of the village, in that case, were the same as those of the City of New York. It was followed in the subsequent case of Conrad v. Trustees of Ithaca, (16 N. Y., R., 158,) and the authority of those three cases remains to this day, unshaken by any judicial doubt.

The learned Judge who delivered the opinion in the Court of Appeals in Hutson v. The Mayor, &c., of the City of New York, (ubi sup.,) says: “ There is a class of cases “in which both public officers and public bodies have “ been held not to be liable for an omission to keep' highways in repair. They are cases, however, where the “powers have been so limited to accomplish the object, “ that the Courts have considered their duty resting in too “ much doubt to render them liable; or that the duty was “ not imposed at all, by an omission to give them the “means necessary to accomplish the object.” Such, I think, will be found to be the cases of Peck v. Village of Batavia, ( 32 Barb., 634 ,) and Hart v. The City of Brooklyn, ( 36 Barb., 226 ,) which apparently relieve the City from liability.

The ground of liability of a municipal corporation for injury to third persons, by their neglect of duty, is elicited, and thoroughly and elaborately discussed and passed upon, in the masterly opinion of Judge Selden, in the case of Weet v. Trustees of Brockport, (16 N. Y. R., 161, in note.) He establishes clearly, that it arises from an actual or supposed contract between the government and individuals or public bodies, evidenced by prescription, grants or chartered powers, under which, by their acceptance and exercise, the latter undertake to discharge corresponding duties, and thus relieve the former from the necessity of providing

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public officers for the purpose. They, in such case, could only be punished for neglect by indictment, which would furnish no indemnity to the parties injured by their neglect. The right of action of each individual for injury by any neglect, in such case, grows directly out of such contract with the government for the benefit of all, collectively and individually.

A distinction, therefore, is to be observed, where the corporate powers are not sufficiently extensive to imply a contract with the State or the public to perform a particular duty, such as where there is. either á discretion given in regard to their exercise, or no means are furnished for performing them. Thus, in regard to the City of New York, while, in the case of The Mayor, &c. v. Furze, ( 3 Hill, 612 ,) it was decided that the Corporation was liable for not keeping in repair sewers and drains once built by them, it was held, in Wilson v. The Mayor, &c., of New York, ( 1 Denio, 595 ,) that, before they were constructed, that body had a discretion, and could not be compelled to build them. A somewhat similar principle prevailed in Cole v. Trustees of Medina, ( 27 Barb., 218 ,) in the Supreme Court, (Gen. T., 8th District,) where the powers of the trustees of a village to open streets, to compel adjoining owners either to lay sidewalks or pay the expense of them, and to repair such sidewalks when laid, were held to be not ministerial but discretionary and judicial, as they were not bound to lay such walks or do such repairs, and therefore the village itself was not liable for the failure to exercise them. Upon that ground alone is such case distinguishable from Hickok v. Trustees of Plattsburg, (ubi sup.) In the previous case of Morey v. Town of Newfane, ( 8 Barb., 645 ,) a town was held not to be responsible for any injury received by a traveler, in consequence of their suffering a highway to be out of repair, because, although commissioners of highways, they had no funds, or means of obtaining them, to defray the expense of repairing. The same principle has been since followed in numerous' cases, including those of Peck v. Village of Batavia and

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Hart v. City of Brooklyn, already alluded to. In the latter of such cases, the learned Judge who delivered the opinion of the Court, held the City of Brooklyn not to be liable for injuries caused by defects in its sidewalks, simply on account of the failure of its charter to furnish them with means for repairing them; but he added that, in no case would it have been liable, unless previously notified of the existence of such defects. Of course such notification could not involve a formal notice by the party injured, or others, otherwise the city would escape liability altogether; and such notice was not considered indispensable in the case of Peck v. Village of Batavia, (ubi sup.) No case, however, overrules the cases already referred to' of Hickok v. Trustees of Plattsburg and Hutson v. Mayor, &c., of New York, in which the liability was upheld, where franchises are given, and means furnished to exercise them by a public corporation. Although the City of Brooklyn was restricted as to its powers, (Laws of 1834, p. 100, § 26, subd. 16-20,) the Corporation of the City of New York possesses ample powers for repairing sidewalks, as well as carriage ways therein, and are furnished with means for the purpose, or power to obtain them. (Kent’s Charters of the City of New York, pp. 99, 100-115, 235-239, n. 31.)

The liability of the Corporation of the City of New York for neglect in repairing streets was upheld, also, in Wallace v. The Mayor, &c., (2 Hilt., 441; S. C., 9 Abb. Pr., 40 ,) by the New York Court of Common Pleas, and the Supreme Court in Wilson v. The Same, ( 1 Denio, 595 , 601,) and the general liability of municipal corporations therefor, in Weightman v. Corporation of Washington, (1 Black., U. S. R., 39,) Innes v. Magistrates of Edinburgh and Dargie v. Magistrates of Forfar, (cited in the appendix to Hay on Liability,) and is laid down in Hay on Liability, (pp. 1, 214.)

No distinction exists between sidewalks and carriage ways, in regard to the duty of the Corporation of New York. They have control of the whole of the streets

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within the city limits, (Montgomerie Charter, §§ 2,10,) and are commissioners of its roads and highways, by various statutes passed at intervals from 1764 to 1813. (Hoffman on Est. & R. of Corporation, &c., of New York, 386, 387.)

The assumption by individuals of the right to make openings or inclose spaces on the "highways as areas, although sanctioned by ordinances of the Corporation, cannot alter the liability of the latter. Every illegal obstruction of the highway is a nuisance, (People v. Laimbeer, 5 Denio, 9 ,) and cannot be sanctioned by custom. (Davies, 89.) The parts railed in continue to be parts of the highway, until adverse possession has changed the encroachment into a title.

An excavation or obstruction in a highway, even for a temporary purpose, ought to be properly guarded and external notice given of the danger. (Ireland v. Oswego, H. & Sterling Plank R. Co., 13 N. Y. R., 526.) In this case there was no pretense that the excavation was temporary, or made for any other purpose except as a separate permanent entrance to the cellar. It was an opening, therefore, for damage arising from which those who made it, or adopted and continued it, were responsible. Of course the City Corporation were not liable for making or continuing it, but only for allowing it to remain after notice of its existence, as inferred from the lapse of time, and" found by the Jury, and after a reasonable space of time had passed in which to repair it. In this case, both the excavation itself and the absence of all safeguards, had existed long enough to warrant the inference of notice, which the Jury made under the charge of the Court. (Wallace v. The Mayor, &c., 2 Hilt., 440; S. C., 9 Abbotts’ Pr., 40, and 18 How. Pr., 169 .)

But the defendants unite in setting up as a defense, that the plaintiff cannot maintain any action, because she is alleged to have participated in the negligence that caused the injury. As, however, the City Corporation was bound to repair and maintain the sidewalk in a safe condition to be waked on, the negligence of the injured party which

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should absolve them, ought to amount to nearly absolute willfulness. The degree of care of a pedestrian on the sidewalks is the correlative of the duty of the Corporation. If they were bound to keep them in such condition only as would make them safe lor travelers in full possession of all their faculties, and exercising great vigilance and precaution, it was negligence for the plaintiff, whose most important sense for discovering danger was impaired, to walk out unattended and without using a stick to feel her way, or some equivalent protection; on the other hand, if they were bound to make and keep, after notice, the surface of the highway safe to be used by persons of as defective eyesight as the plaintiff’s, she was entitled to rely on the performance of that duty, and was not so negligent as to absolve the defendants from liability. This view, of course, would not affect the question of a reckless disregard of danger.

Before considering, however, the question of the duty of the Corporation, it will be useful, if not necessary, to examine the foundation of the decisions in those cases where persons destitute of forethought, such as infants, lunatics or drunkards, or of the sense of hearing, have been injured by vehicles propelled by horses or steam. (Hartfield v. Roper, 21 Wend., 615 ; Lehman v. City of Brooklyn, 29 Barb., 234 ; Willetts v. Buffalo R. R. Co., 14 Id., 585; Johnson v. Hudson R. R. R. Co., 20 N. Y. R., 65.) ,In all those cases the roads were used in a lawful way by the persons having charge of the vehicles that did the injury. They were not bound to know that the persons injured were bereft of their senses; on the contrary, they were entitled to presume that no one entitled to go in the streets would voluntarily put themselves in the way pf a vehicle seen by them, or run into danger. Danger from those using a road is entirely different from that created by the road itself; against the former every one will provide, the latter they have no reason to suspect exists. In this case the excavation was illegal, at least, if unguarded. (13 N. Y. R., 526.) Mo one, whatever his infirmities might

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be, had, therefore, any reason to fear its existence. The eases cited, therefore, throw no light on the duty of the Corporation and consequent degree of. care to be exercised by the plaintiff. Nor does any case which holds a party liable for not putting up a light, whereby an injury ensues to a traveler, establish the presence of a light to be the only' criterion of proper caution.

The question therefore recurs, what persons are entitled to be protected against pit-falls on the highway, and, of course, what the condition of the faculties of those must be who are warranted in going on the highways unattended. If the rule contended for by the defendants be . correct, not only are the deaf, blind and lame, but individuals subject to fits, nay, the old and infirm and even near sighted persons, all of whom daily traverse our streets, are, deprived of all protection of the municipal guardians of the city, so far as pit-falls on the highway are concerned, even on the sidewalks. Their infirmities, instead of creating a sympathy, put them beyond the pale of the protection of the law.

The law, in regard to municipal obligations, never was intended to embarrass the infirm and maimed in the use of the highway, if they were willing to encounter its ordinary risks, or to increase the latter by adding to the helplessness arising from their misfortunes, the negligence of public bodies charged with the duty of providing safe highways. Those who have good eyesight, and rush upon danger with their eyes open, are justly chargeable with something more than negligence. But the purblind arc entitled to rely upon the absence of all dangers of a kind, of which, or in a place, where the law has said none ought to exist, if those whom it has charged with it do their duty. That rule has. been applied even where parties had their'faculties. (Regina v. Train, 3 Fost. & Finlay’s, 27; Same v. United Kingdom Teleg. Co., Id., 73; Dargie v. Forfar, ubi sup., Hay on Liability, 208, 215.) There are no cases probably to be found which determine, specifically, the rights and duties of the guardians of the highways to

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those who traverse them with diminished bodily faculties, but as those should be equally under the care of the law, the diligence of such guardians should extend to their protection also.

But it is said that the plaintiff’s negligence in going into the street, consisted in being there unattended, although knowing her defective vision; in other words, she did not use the proper precautions which she might have taken, notwithstanding her infirmity. It seems to be conceded that if she had had an attendant, it would have been sufficient care. But suppose such attendant to have been inattentive or malicious, would the plaintiff escape the imputation of negligence ? In this very case, she had all the benefit of an attendant, for she asked of bystanders if the way was safe, and was informed it was. To require one in her situation, dependent on her own exertions for a livelihood, to remain in doors, and either starve or subsist on charity, unless she could provide herself with an attendant because there were pit-falls on the public highway, would be a mockery. But it is not necessary for the determination of this case, to go so far as to insist that the guardians of highways should leave them safe for the blind. The plaintiff had some power of vision, and it was left to the Jury to say whether it was sufficient to enable her to go with reasonable assurance of safety through the streets, if they were kept, as it was the duty of the Corporation to have kept them. The qualification was more than the defendants were entitled to, and there was no request to instruct the Jury what was the duty of the Corporation. Both parties were willing to assume that the Jury understood it. It is, besides, very clear that it depends entirely upon what the condition is in which the City Corporation are bound to keep the streets, whether the blind or those of defective vision have a reasonable assurance of safety in passing over them.

All the requests of the counsel of the City Corporation for instructions to the Jury, as to their duty in regard to the streets, were, therefore, in any event, properly over

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ruled. They were bound, as has already been shown, to have the highway level and without uncovered and unguarded excavations, even in the daytime, and it was not necessary that the excavation should have been dangerous to persons in full possession of their eyesight. The plaintiff was not entirely blind, and the request as to persons in that condition was immaterial. So, also, the requests for instructions as to the plaintiff’s negligence, were properly refused. She was not bound to use more than ordinary care in passing along the sidewalk, or to have a guide, although unable to determine for herself if • it was free from obstructions or excavations. The Court, in fact, instructed the Jury, that it was the duty of the City Corporation “ to see that such places are maintained “ in a proper and safe condition.” But no request was preferred to explain its meaning, or to give any instructions as to what such condition was. It may have been very rash for the plaintiff to encounter all the risks of the public streets unattended, although necessity drove her to it. But that forms no reason why those public bodies or officers, on- whose faithful discharge of their duties she had a right to rely, should betray their trust, and leave a still greater danger added to those existing on the most safely constructed highways.

The liability of the defendant Ruckman did not depend upon his possession or ownership in fee of the premises at the time of the accident; that may have made the possessors and owners also liable, but did not discharge him ; nor was it necessary that he should have made the excavation originally. On the other hand, as this excavation was on the highway, outside of his premises, he was not bound, simply by reason of bis interest in the latter, to keep it in a safe condition. The excavation, steps, doors and railings connected therewith came into his possession with the premises, and appear to have been used as a mode of access to the lower part of the building, as an appurtenance, and he may, therefore, be considered as having sanctioned and adopted them, as though he had

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originally caused them to be made. Being, therefore, an invasion of the highway, he was bound absolutely to see that no harm came from it. He leased the premises with such appurtenance, and possibly thereby may have forfeited any right to exclude his tenant afterwards from its enjoyment. The Court of Appeals of this State has held, in a case which went from this Court, that he who disturbs the surface of the highway and makes openings in it is an insurer of all persons who pass over the opening, however carefully protected, (Congreve v. Morgan, 5 Duer, 495 ; S. C., 18 N. Y. R., 79, 85,) and is not excused by mere proof of due care. This Court held, in the same case, that a person may adopt as his own and become responsible for an excavation made by another. That would, of course, present a question of fact, but as there was evidence tending to show such adoption in this case, the verdict cannot be disturbed, unless some of the requests to charge were improperly overruled or improper instructions given.

The charge was, that it was the duty of the defendant Ruckman to provide proper guards for the opening, to see that it was safely kept and in a safe condition when he parted with the premises. This was clearly proper. He was responsible for the injury to the plaintiff, by the condition in which, the opening was when the accident occurred, if it was unsafe when he parted with the premises, unless some one, without his assent, had rendered it dangerous in the mean time. If, however, once rendered safe after he parted with it, he probably would not be responsible for a subsequent withdrawal of any safeguards, without his consent. But if once in a dangerous condition with his sanction, he was responsible for the continuance of such condition, as wrell as all others who continued it, until it was rendered safe.

Every request for instructions ,as to the exemption of the defendant Buckman from liability, proceeds on erroneous assumptions of the rules of law in regard to it. As matter of law, he might be liable, notwithstanding the existence of a railing at the side of the opening, his being

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neither owner nor possessor of the premises, nor bound to repair, and his being prevented from repairing. If he was the author of, or otherwise responsible for, the exist-1 enee of the cavity in the sidewalk unguarded, he became an insurer against any damage to any passer-by therefrom. The Court could not, in any event, decide on the sufficiency of a railing, as matter of law. The additional responsibility of others, or the hindrance of the plaintiff by others, would not impair his liability.

Many exceptions to the refusal to charge as requested on the part of the City Corporation, which were not .pressed on the argument, are equally untenable with "the others already noticed, on which they are mainly based.

There being no exceptions to the admission and exclusion of evidence, and no error in the charge or refusals to charge, the exceptions taken must be overruled, and judgment ordered for the plaintiff for the amount of the verdict, with costs.