Davenport v. Ruckman

Corporation—Safety of Streets—Liability—Lessee of Lot on Street—Excavation. The streets or sidewalks in a city are for the benefit of all classes and conditions of people; and they are at liberty to regulate their conduct in respect thereto, upon the assumption that they are in good condition. The Corporation are liable for injuries inflicted upon persons passing along the streets or sidewalks of the city, in consequence of the dangerous condition of such streets or sidewalks, whether such injury arises from some act done by the Corporation, or from some omission of duty on their part. The lessee of premises upon which the sidewalk is out of repair, by reason of an opening therefrom into the cellar on said premises, may be liable although the premises are at the time in the occupation of a sub-tenant who had agreed to keep the walk or premises in repair.

This was an action brought 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 of a building on such avenue, of which the Defendant Euckman had a lease, and of which building he was the owner. The excavation in question was a 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 a 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 enclosed by wooden doors, and at another time by an iron railing, which had long previously been removed. The Defendant Euckman 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, 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), with whom, he agreed to put the premises in repair. The Defendant Euckman 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.” A verdict having beén 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 refusal to charge as requested. The counsel for the Defendants, the Corporation of the City of Few 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 opening 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 alone 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 Euckman requested the Court to charge the jury, in substance, among other things, in reference to his liability for the injury to the Plaintiff: First: 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. Second: That Mitchell or Lovett owned them in fee. Third : 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 were kept in a safe condition ; ” there was, in the 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 wordd 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 fulfil 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 circumstance that she was partially blind, and fell into this opening in the daylight, was not of any importance.” 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 a 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 guilty of negligence in going abroad unattended.” “ The 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 assurance of safety through the streets,” if they were kept in good condition To these conditions the Defendants’ counsel excepted. The Court instructed the jury, also, that the Defendant Buck-man 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.” To these instructions the Defendant Buckman’s counsel excepted. The General Term ordered judgment for the Plaintiff upon the exceptions, from which judgment the Defendant now appeals to this Court.