Opinion
December Term, 1897.
Benjamin F. Tracy, George B. Curtiss and James R. Soley, for the appellant.
Rollin W. Meeker, Edmund O'Connor and James H. Roberts, for the respondent.
The plaintiff, to maintain his action, was compelled to show that the injury for which he sought to recover damages was caused by the negligence of the defendant's employee, and also the absence of negligence on his part contributing to the injury.
We are unable to believe that negligence could be properly attributed to the driver of the express wagon, lawfully traveling on the public highway, for failing to observe the leg wire which the plaintiff had placed across it. One using a public street has no reason to apprehend danger, and is not required to be vigilant to discover dangerous and unusual obstructions. ( Pettengill v. City of Yonkers, 116 N.Y. 558; Jennings v. Van Schaick, 108 id. 530; McGuire v. Spence, 91 id. 303; Brusso v. The City of Buffalo, 90 id. 679.)
There is no reason to discredit the uncontradicted testimony of the driver that he did not hear the warning given by the plaintiff or see the wire. His view was obstructed by the two wagons in front of him; he was driving a third wagon. The three wagons would naturally make some noise, and it is not an improbable statement that, while the drivers of the two front wagons heard the warning, the defendant's servant in the express wagon in the rear did not. Besides, he was lawfully engaged in his business of picking up express packages, and was properly attending to that business and to the ordinary duties of a driver in a much traveled public street, watching for other vehicles or for any ordinary obstacle in the street. It does not appear that he had ever passed that locality before when the lamp was lowered and the leg wires were placed across the street. While the driver of a vehicle passing along the street in question might observe a wire stretched across it, we are unable to believe that negligence, under the circumstances appearing in this case, could be attributed to him in failing to observe it. His attention, as suggested, would naturally be drawn to the ordinary obstacles in a crowded public place. He would not be called upon to anticipate or watch for danger arising from an unusual obstruction, of which it does not appear he had any previous knowledge.
The plaintiff testified that when he first saw the wagon the horse was coming at a slow trot. It does not appear that he afterwards noticed the vehicle before it struck the wire. He subsequently testified that the horse was going at a rapid speed, not as fast as he could go, "but he was still on a jump." This testimony we infer must refer to the speed of the horse after the wagon struck the wire, and the animal, feeling the obstacle caused thereby, sprang forward. However that may be, it has been held that driving at a rapid speed in the street of a city is not negligence in fact or law. ( Crocker v. The Knickerbocker Ice Co., 92 N.Y. 652.)
The defendant's employee, Bliss, was lawfully proceeding along a public street, and the only negligence on his part shown was a failure to observe an unusual obstacle in the street, of which, as suggested, it was not shown that he had any previous knowledge, which he was not called upon to anticipate, and which he naturally, in attending to the ordinary duties of a driver in a crowded street, might not see.
As we have seen, there were two top vehicles in front of the defendant's wagon. These two wagons would prevent Bliss from observing the wire, which the proof shows sagged down to within six feet of the ground. When those wagons turned south, the horse Bliss was driving must have been near the wire, and have so obstructed his view that he would not probably see it. The evidence, certainly, is as consistent with freedom from negligence as negligence, and, under such circumstances, the jury should not be left to a "mere conjecture or to act upon a bare possibility." (See Taylor v. City of Yonkers, 105 N.Y. 202, 209.)
We think that, on the uncontradicted evidence, the plaintiff failed to show actionable negligence on the part of the defendant's employee.
It remains to be considered whether on the trial the plaintiff established the fact that his own negligence did not contribute to the injury.
We assume that the city of Binghamton might lawfully authorize the Binghamton General Electric Company to place the lamp where it was located, and, when necessary to clean it, to temporarily obstruct the street with the leg wire, which caused the accident. But such license did not permit the said company to thus obstruct the street without taking proper and necessary precaution to prevent injury to those lawfully traveling thereon. Unless such precautions were taken, the obstacle would become a nuisance, and the city itself, had it authorized such obstruction without such precautions being taken, as well as the Binghamton General Electric Company and its employees, would become liable for damages caused thereby.
Did the said company and the plaintiff, its employee, in placing the wire across the public street, which prevented the passage of vehicles with tops at the time of the accident, take proper precautions to prevent accident? We think not. The plaintiff, the employee of the Binghamton General Electric Company, knew that the wire was a dangerous obstruction in the street; that it was one that might not be observed by a traveler thereon. His duty was to take proper precautions that such an accident as was caused by his thus obstructing the street should not occur. He saw three wagons approaching. His duty was not fully performed by the warning he gave. The defendant's driver did not hear that warning. It was reasonable to suppose, being in the rear of two other wagons in a public street, that he might not hear it. Proper care required the plaintiff to observe whether or not each of the drivers of the three wagons did hear the warning. Had he waited a moment and observed the express wagon approach, the accident would not have occurred. The driver of the wagon, in fact, had no notice of the obstruction in the street. We think a duty of active vigilance devolved upon the plaintiff, under the circumstances appearing in this case, which compelled him to give notice of the obstruction he had placed in the street, and to observe whether that notice was heard by the defendant's employee, and that this duty was not satisfied by his giving a warning and then turning his back to the approaching express wagon without knowing whether the driver heard it or not. He was bound to give to the defendant's employee an effectual warning.
We, hence, reach the conclusion that the plaintiff failed to show the absence of contributory negligence on his part.
It is suggested by the respondent that, under all the circumstances of the case, the question as to the contributory negligence of the plaintiff was for the jury; but it has been held that, where the facts are practically undisputed, the question of contributory negligence may become one of law. ( Morrison v. Erie Railway Co., 56 N.Y. 302; Cordell v. N.Y. Central H.R.R.R. Co., 75 id. 330; White v. Sharp, 27 Hun, 94; 97 N.Y. 640.)
We think that, on the undisputed facts in this case, the plaintiff failed to show the absence of contributory negligence on his part, and, hence, there was no question in that regard that should have been submitted to the jury.
The judgment should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment and order reversed, new trial granted, costs to abide the event.