Opinion
May Term, 1897.
Willard U. Taylor, for the appellant.
Theodore Connoly and Francis M. Scott, Corporation Counsel, for the respondent.
The plaintiff, the owner of a cab, was driving through one of the streets of the city of New York between nine and ten o'clock at night, when, in consequence of a depression in the street, caused by a sinking of the pavement, his cab was injured; and this action is brought to recover the amount expended in repairing the cab.
The question is as to whether or not the city was negligent in allowing the street to become unsafe. In determining cases of this character the ground of the liability of a municipal corporation should always be kept clearly in mind. Such a corporation is created for public purposes, to perform certain public duties, and among them is the duty of keeping in proper repair the streets and highways within the corporate limits. It is vested with power for such purpose, and with the power to procure the money necessary to accomplish that purpose. It stands in no other relation to a party using the streets, except as charged with this duty; the only obligation on the part of such municipal corporation to one using the street is that the street shall not become dangerous or unfitted for use by reason of the neglect of the municipal corporation to perform this duty — not to make a street absolutely perfect, but to make it reasonably safe for the use to which it is put. The law imposes upon municipal corporations the duty of guarding against such dangers as can or ought to be anticipated or foreseen in the exercise of reasonable prudence and care; and the only question here is whether there was evidence that would sustain a finding of the jury that the city had neglected its duty in regard to this street, and whether the injury complained of was the result of such neglect. The accident happened in Thirty-eighth street, between Second and Third avenues. The plaintiff, with two passengers in his cab, was driving down this street at about half-past ten o'clock at night. It was quite dark and there was no gas lamp in the immediate neighborhood. While driving on this street, so far as appears, exercising ordinary care, his cab was injured, the jar breaking the spring and otherwise damaging it. The hole was from three to five feet wide, from one to two and a half feet long, and a foot deep. It appears to have been caused by the settling of the paving stones at this place, as the stones had not been removed. The hole was immediately in front of a fire hydrant, and the settling of the ground over the pipe connecting the hydrant with the water main may have been the cause of the settlement of the pavement. Whatever the cause, however, here there existed in this street a depression of the pavement a foot or over in depth, and extending some distance across the highway. Upon the wheel of the cab striking this depression, the cab was injured. There was evidence that a wagon driven by a witness who testified on the trial had been caught in this hole about a week before the time of this accident, and that the hole had been in existence for a month before the accident. It is quite clear that this evidence required the court to submit to the jury the question as to whether or not the defendant had notice of the existence of this condition of the pavement, or whether the defendant was negligent in not having ascertained the condition of the streets before. The duty of inspecting the streets is as much a part of the duty of a municipal corporation as is that of repairing a street when such an inspection has revealed a condition requiring repair; and if it appears either that the corporation knew of the defect and neglected to repair it, or neglected to inspect and thus failed to know its condition and to make the repair, there is negligence that will sustain a recovery. The existence of such a condition of a street for a month is certainly a sufficient time to justify a finding that the defendant was negligent in not ascertaining the condition of the street and making the necessary repairs to put it in order.
The remaining question is as to whether or not this settlement of the pavement of the street created a condition from which a prudent person would anticipate or foresee an injury to a person using the street with care. I think this was a question for the jury. As before stated, we must be careful not to ask too much of a municipal corporation. Its duty is confined to keeping a street or roadway in a reasonably safe condition, considering the use to which it is to be put. Here, however, was a street in a crowded part of the city, entirely surrounded by buildings, and upon which at all hours of the day or night there was more or less traffic. The street being paved, those using it were justified in assuming that the pavement was kept in such repair that a vehicle driven along with ordinary care and at an ordinary rate of speed would not meet with an obstacle that would injure it. The existence in the middle of such a street of a depression in the pavement three to five feet long, a foot to two and a half feet in width and a foot deep, would necessarily tend to injure a vehicle driven along the street where the wheels would strike upon the sides of the depression. It seems to me obvious, considering the character of the pavement and the nature of the depression, that an injury would happen to any one driving over or in it at even a moderate rate of speed.
I think, therefore, that upon the testimony in the case, there was evidence that required the question of the defendant's negligence to be submitted to the jury.
The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
O'BRIEN, RUMSEY, WILLIAMS and PARKER, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.