Nicholson v. Town of Stillwater

15 Citing cases

  1. Lendrum v. Village of Cobleskill

    192 App. Div. 828 (N.Y. App. Div. 1920)   Cited 11 times

    The case of King v. Village of Fort Ann ( 180 N.Y. 496) seems nearer the defendant's contention than any thus far considered, yet the conditions are entirely different; the highway was straight and a ditch two or three feet deep ran along the highway six or seven feet from the road; plaintiff drove outside of the road and along the ditch for one hundred feet before he turned into it; no reason was given for the act except that it was dark; the ditch was the usual ditch along the highway to drain the water from the highway, and while it was in an incorporated village the location was in the outskirts and meagerly inhabited. It is not an authority for defendant under the circumstances obtaining here. Dorrer v. Town of Callicoon ( 183 App. Div. 186) is where an auto truck went over an unguarded embankment; the opinion is clear and points out the distinction, in the circumstances, between that case and the one here considered. The difference between that case and the case of Nicholson v. Town of Stillwater ( 208 N.Y. 203), which was an automobile accident, in some respects like the present case, was also clearly pointed out, and the case distinguished from Dorrer v. Town of Callicoon. Lane v. Town of Hancock ( supra) states the rule universally followed in the consideration of negligence cases, viz.: Whether, under all the circumstances appearing in the particular case at the time the accident occurred, the commissioner performed the duty imposed upon him by law. It is a matter of universal knowledge that the uses to which streets and highways have been put have materially increased and broadened since the decision in the Lane case; powerful machines, capable of going twenty-five to sixty miles an hour and more, now commonly travel over our streets and highways; and while the old rule of "ordinary care and prudence" still is resorted to, in words, in determining the responsibility of persons and corporations, as to negligence or contributory negligence, it means care and prudence commensurate with the

  2. Mason v. Hillsdale Highway Dist

    65 Idaho 833 (Idaho 1945)   Cited 23 times

    City Council of Augusta v. Hudson, 94 Ga. 135, 21 S.E. 289; Wisniewski v. Town of Belmont, 213 Wis. 34, 250 N.W. 859; Becker v. Ill. Cent. R. Co., (La.) 147 So. 378; Lane v. Town of Hancock, 142 N.Y. 510, 37 N.E. 473. Miller v. The Village of Mullan, 17 Idaho 28, 104 P. 660; Douglas v. City of Moscow, 50 Idaho 105, 294 P. 334; Berland v. City of Hailey, 61 Idaho 333, 101 P.2d 17; City of Dallas v. Maxwell, (Tex.) 231 S.W. 429; Bond v. Inhabitants of Billerica, 235 Mass. 119, 126 N.E. 281; Branegan v. Town of Verona, 170 Wis. 137, 174 N.W. 468; Lendrum v. Village of Cobleskill, 192 App. Div. 828, 183 N.Y. S. 215; Nicholson v. Town of Stillwater, 208 N.Y. 203, 101 N.E. 858; Kerr v. Kiskiminetas Township, 238 Pa. 59, 85 A. 1084; Sims v. Williamsburg Township, 92 Kan. 636, 141 P. 581; Dunn v. MacDonald, 110 Conn. 68, 147 A. 26; Winegardner v. Springfield Township, 258 Pa. 496, 102 A. 134; Murray v. Board of Commissioners. 58 Kan. 1, 48 P. 554; Roth v. Highways Commission, 115 Md. 469, 80 A. 1031; Mason v. Town of Andes, 261 App. Div. 354, 25 N.Y. S. (2d) 738; Fidler v. Lafayette Township, 226 Mich. 635, 198 N.W. 262. Appellant assigns as error the admission of testimony by a competent civil engineer and three farmers who lived in the vicinity, the latter of whom occasionally used the road, to the effect that they considered the tread planks negligently dangerous, the entire situation presenting a negligent hazard, as not the proper subject of expert or opinion evidence and invading the province of the jury, that the conditions were perfectly apparent to and capable of analysis by any person of ordinary understanding.

  3. City of Phoenix v. Mayfield

    41 Ariz. 537 (Ariz. 1933)   Cited 33 times
    In City of Phoenix v. Mayfield, 41 Ariz. 537, 20 P.2d 296 (1933), the court held a wrongful death claim not subject to the City's mandatory demand and proof process for "any claim in favor of any person against the City... except claims of officers and employees of the City for their salaries."

    The negligence consists, not in the plan of the work, or the manner in which it is done, but in the failure to provide suitable protection against accident after the work is completed. 43 C.J. 1033, § 1814; Chance v. City of St. Joseph, 195 Mo. App. 1, 190 S.W. 24; Brooks v. City of Monterey, 106 Cal.App. 649, 290 P. 540; Lendrum v. Village of Cobleskill, 192 App. Div. 828, 183 N.Y. Supp. 215; Bean v. City of Portland, 109 Me. 467, 84 A. 981; Nicholson v. Town of Stillwater, 208 N.Y. 203, 101 N.E. 858; Corcoran v. City of New York, 188 N.Y. 131, 80 N.E. 660. Leading up to the 200 feet that were not improved, Jackson Street had been either graded or paved and lighted by electricity.

  4. Axelson v. Jardine

    57 N.D. 524 (N.D. 1928)   Cited 19 times

    There is no general and infallible rule by which to determine whether a case based on the negligence of a town as respects the condition of a highway shall be disposed of as a matter of law or by the verdict of a jury; and whether the town has been guilty of negligence must largely be determined by the particular features of each case. Nicholson v. Stillwater, 208 N.Y. 203, 101 N.E. 858. Whether or not one contracting to make street improvements is negligent in failing to maintain barriers or watchmen to warn the public when he obstructs the traveled way is ordinarily a question for the jury.

  5. Stern v. International Ry. Co.

    115 N.E. 759 (N.Y. 1917)   Cited 61 times
    In Stern v. International Railway Co., 220 N.Y. 284, 115 N.E. 759 (1917), then-Judge Cardozo set forth a common-law standard for judging the liability of a utility that erects poles in or near a public roadway.

    The defendants refer to cases in which a city planning an improvement has been held to be exonerated for errors of judgment in the plan ( Urquhart v. City of Ogdensburg, 91 N.Y. 67; 97 N.Y. 238; Owen v. City of New York, 141 App. Div. 217; Pitman v. City of New York, 141 App. Div. 670). A distinction has been drawn between affirmative approval, which will evidence a true exercise of discretion, and passive acquiescence, which may be merely a negligent omission to remedy an evil. The decision in Urquhart v. City of Ogdensburg, on its second hearing in this court, illustrates the distinction ( 97 N.Y. 238). Even in cases of express approval, the rule of exemption has been kept by later cases within narrow bounds ( Ivory v. Town of Deerpark, 116 N.Y. 476; Fitzgerald v. City of Binghamton, 40 Hun, 332; 111 N.Y. 686; Nicholson v. Town of Stillwater, 208 N.Y. 203; Corcoran v. City of New York, 188 N.Y. 131; Kiernan v. Mayor, etc., of N.Y., 14 App. Div. 156, and cases there cited). We do not need to define them now. It is enough that the present case is not within them.

  6. Jolley v. County of Washington

    271 App. Div. 1046 (N.Y. App. Div. 1947)

    At the close of the plaintiff's case the trial judge granted a motion to dismiss it. In our opinion there are questions of fact for submission to and determination by a jury ( Nicholson v. Town of Stillwater, 208 N.Y. 203; Countryman v. State of New York, 251 App. Div. 509, affd. 277 N.Y. 586; Huston v. County of Chenango, 253 App. Div. 56, affd. 278 N.Y. 646; Wagner v. City of Amsterdam, 256 App. Div. 144; Mason v. Town of Andes, 261 App. Div. 354, affd. 287 N.Y. 616). Judgment appealed from reversed on the law and facts, and a new trial granted, with costs to abide the event.

  7. Garrow v. State of New York

    268 App. Div. 534 (N.Y. App. Div. 1944)   Cited 14 times
    In Garrow v. State of New York (268 App. Div. 534, 537, affd. 294 N.Y. 741) the court, in directing judgment for the claimant, stated the settled rule: "The law presumes that she did not intentionally take her own life."

    ( Wolf v. State of New York, 122 Misc. 381, affd. 210 App. Div. 827; Johnson v. State of New York, 186 App. Div.. 389, affd. 227 N.Y. 610; Lendrum v. Village of Cobleskill, 192 App. Div. 828; Daggett v. State of New York, 242 App. Div. 721, affd. 265 N.Y. 632; Countryman v. State of New York, 251 App. Div. 509, affd. 277 N.Y. 586; Huston v. County of Chenango, 253 App. Div. 56, affd. 278 N.Y. 646; Mason v. Town of Andes, 261 App. Div. 354, affd. 287 N.Y. 616; Flansburg v. Town of Elbridge, 205 N.Y. 423; Nicholson v. Town of Stillwater, 208 N.Y. 203; Griffith v. Town of Colesville, 261 N.Y. 568.)

  8. Kelly v. State

    253 App. Div. 771 (N.Y. App. Div. 1937)

    The State was liable. ( Nicholson v. Town of Stillwater, 208 N.Y. 203; Flansburg v. Town of Elbridge, 205 id. 423; Roberts v. Town of Eaton, 238 id. 420; Cotriss v. State of New York, 223 App. Div. 520.) The judgment dismissing the claim should be reversed and the matter remitted to the Court of Claims for the purpose of fixing compensation.

  9. Countryman v. State of New York

    251 App. Div. 509 (N.Y. App. Div. 1937)   Cited 18 times

    Every one must largely be determined by its particular features." ( Nicholson v. Town of Stillwater, 208 N.Y. 203, 207, 208.) "They are bound to maintain guard rails or barriers only to protect those traveling within the space prepared and offered for that purpose against dangers in such close proximity thereto as to make traveling on it perilous or where there are other unusual or exceptional conditions."

  10. Coe v. City of New York

    238 App. Div. 453 (N.Y. App. Div. 1933)   Cited 3 times

    The ordinance is but a concrete expression of common-law duty. The measure of this duty varies according to many circumstances — the condition adjacent to the highway, whether natural or one artificially created; the time when the accident occurs, whether night or day; the condition of the weather, whether foggy, rainy or clear; the condition of the road; and the potentiality of danger indicated to the prudent by many other conditions prevailing. ( Kiernan v. Mayor, 14 App. Div. 156; Dennis v. Village of Elmira Heights, 59 id. 404; Lendrum v. Village of Cobleskill, 192 id. 828; Rigby v. Town of Gerry, 209 id. 391; Maloney v. City of New York, 154 id. 608; Nicholson v. Town of Stillwater, 208 N.Y. 203; Flansburg v. Town of Elbridge, 205 id. 423.) The distinction rests largely on the degree of care required under these varying circumstances, and the question is ordinarily one of fact.