Donnelly v. . City of Rochester

Cullen, J. This action is brought to recover damages for the death of the plaintiffs intestate, alleged to have been caused by the negligence of the defendant. In front of the Powers building, on Main street, the principal business street in the city of Eochester, there was an areaway which extended into the street six féet four inches, and was twelve feet three inches below the grade of the sidewalk. The descent from the sidewalk to the level of the area was vertical. The excavation was, at the time of the accident that is the subject of this suit, guarded by a railing two feet and a half high, erected along the edge of the sidewalk. On the evening of January 29, 1897, the .plaintiffs intestate, who had been standing near the railing on the sidewalk, started to walk across it to take an approaching car. He slipped on some snow which had recently fallen and wTas precipitated over the railing into the areaway. The areaway and railing had existed for a number of years in the same condition as at the time of the accident. On the trial the plaintiff put in evidence an ordinance of the city of *318 Rochester which prescribed that cellarways or openings, platforms or approaches to any building should have a substantial rail on the sides thereof, at least three and a half feet high. At the conclusion of the evidence for the plaintiff the complaint was dismissed, and the judgment entered on such dismissal has been affirmed by the Appellate Division of the Supreme Court. This action is not brought to impose liability upon the city for failing to enforce its ordinances, but for default in its own primary duty to 'maintain its streets reasonably safe and secure for travelers thereon. "Nor on the other hand do we consider the areaway to have been necessarily an unlawful encroachment upon the highway and a nuisance yw se. Subdivision 1 of section 6 of the amended charter of the city of Rochester (Chap. 561, Laws of 1890) authorizes the common council “ to regulate and prevent the use and cumbering of streets, avenues,” etc. While the right to excavate areaways or construct stoops in the highway is not an incident to the ownership of the adjacent land, a long usage of the highway for such purposes justifies the inference that the municipal authorities have consented to the presence of such structures on the highway, and “ it is competent for the legislature to authorize a limited use of sidewalks in front of buildings in cities and villages for stoops or cellar openings, or underground vaults, for the more convenient and beneficial enjoyment of the adjacent premises.” (Jorgensen v. Squires, 144 N. Y. 280. See Broadbelt v. Loew, 15 App. Div. 343 ; affirmed on opinion below, 162 N. Y. 642.) The gist of this action is negligence, and the case was so treated in the trial court. It thought there was not sufficient proof of the defendant’s negligence. We entertain a different view. The areaway had existed for so long a period of time that if through the insufficiency of the guard rail it was a source of danger to persons on the street, the officers of the municipality were chargeable with knowledge of the danger. ¡Nor is the case one in which it can be said that because no previous accident had happened on account of the height of the railing, danger could not reasonably have *319 been anticipated. As a matter of fact, it appears that accidents had occurred from persons falling into the areaway of this building, though not at the precise point where plaintiff’s intestate met with his injury. The presence of a deep excavation along the line of the sidewalk, unless sufficiently guarded, necessarily created danger. The defendant’s own ordinance prescribed three feet and a half as the proper height for such railings. Though a violation of the ordinance is not negligence per se, it is some evidence of negligence. (Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488.) But apart from the ordinance, we do not think it can he said as a matter of law, that a railing two feet and a half high, less than half the height of an ordinary man, was sufficient protection to persons passing on the busiest and most frequented street in a large city. The question was one of fact for the jury, and should have been so submitted. The judgment appealed from should be reversed and a new trial granted, costs to abide the event. Parker, Ch. J., Gray, O’Brien, Haight and Landon, JJ., concur; Werner, J., not sitting. Judgment reversed, etc.