Hunt v. . Mayor, Etc., of New York

Andrews, J. The fact of the explosion, is itself a demonstration that the street was at the time in an unsafe and dangerous condition, and the only question is whether upon the evidence the city is or may be liable for the injury suffered by the plaintiff. The duty cast upon a municipal corporation to keep its streets in a safe condition for travel is not absolute, so as to impose liability upon the corporation in every case where a traveler, without fault on his 'part, sustains injury ■from a defective street. Its liability depends in all cases upon negligence, that is, upon the fact whether it has omitted.to exercise due care, under the circumstances, in their maintenance or reparation. The mere existence of a defect from which a traveler sustains injury, does not, independently of negligence, establish a culpable breach of duty on the part of a municipality. The cases of injuries from obstructions placed in streets by *141 third persons without the consent of the municipality, of which it has no notice, are illustrations of the principle that the liability of a municipality for the unsafe condition of its streets rests upon the basis of negligence, and not upon an obligation assumed or imposed by law to keep the streets at all times and at all hazards in an absolutely safe condition for travel. Where an injury happens from the defect of a roadway itself, or from a dangerous condition of the street created by the act or consent of the municipality, negligence, as in the other cases mentioned, is the ground of liability. In the one class of cases the conclusion of negligence may be reached more easily than in the other, but the principle upon which the liability depends is the same in both, notwithstanding the difference in the circumstances, Where the defect is known, rendering the street unsafe and dangerous, the municipality is bound to be prompt and vigilant in remedying it. It is at all times bound to exercise due care that the streets are safe and free from dangerous defects, and that they shall not become unsafe or dangerous. To this extent its duty is absolute. The language of the eases expressing the measure of duty resting upon a municipal corporation in respect to its streets, sewers, etc., has not always been carefully guarded, but the doctrine has been frequently reiterated in this court that there is no absolute guaranty or undertaking on the part of a municipal corporation that its streets or other constructions shall at all times and under all circumstances be in a safe and proper condition, and that its obligation and duty extend only to the exercise of reasonable care and vigilance (McCarthy v. Syra cuse, 46 N. Y. 194; Smith v. Mayor, etc., 66 id. 295 ; Ring v. Cohoes, 77 id. 83 ; Hubbell v. Yonkers, 104 id. 434). There must be willful misconduct or culpable neglect to create liability. It follows that negligence on the part of the city was an essential element of the plaintiff’s case, and it was incumbent upon him to establish it, or to give evidence from which it could be inferred, before he was entitled to have the question submitted to the jury. The use of the street for the *142 steam pipes was expressly authorized by law. But the consent of the city to such use was required, and as on giving its consent,'the city was empowered to prescribe reasonable regulations and conditions under which the right granted should be exercised, an omission on its part to prescribe proper regulations for the use of the streets for that purpose, or to exercise proper supervision over the work would, we think, justly render the city liable for accidents attributable to such omission. The plaintiff did not rest his case on the mere proof of the happening of the accident, and it is unnecessary to consider whether, in the absence of any evidence in the case beyond that, a presumption of negligence would have arisen which would have called on the city for explanation. (See Curtis v. Rochester & Syracuse R. R. Co., 18 N. Y. 534.) The plaintiff proved the ordinance of the common council granting consent to the company to its use of the streets for the steam pipes, and also proved the manner in which they were laid; their location with reference to the gas-pipes; the fact that after the explosion the wood-box enclosing the steam pipes was found to be on fire; the leakage of the gas-pipes, caused by the heat from the steam pipes, and their disturbance in the work of excavation, and also the opinion of the city inspector as to the cause of the explosion. It is insisted that the omission of the city to prescribe the manner of laying ,the steam pipes and their location, or to take any measures.to guard against an explosion, was an omission of duty which renders it liable. It is inferable that the work was prosecuted under the observation of the city inspector having supervision of the laying of steam pipes in the city, and that the agents of the gas company were present to protect the gas jfipes, and' used all practicable care to render them secure. There is no proof that the steam pipes were improperly located, or indeed that any different location was practicable, or that a man-hole was not a proper arrangement, or that there was any lack of care in conducting the work The laying of steam pipes for the purpose for which these were laid was a new enterprise. The evidence introduced by the plaintiff tends to show that *143 such an accident, as in fact occurred, could not have been anticipated, and that there was no reasonable ground at the time for apprehending any danger from the proximity of the steam pipes to the gas pipes. Under such circumstances the omission of the city to make a regulation prescribing the manner in which the steam pipes should be laid, furnishes no evidence of negligence. The experience furnished by the accident led to the changes in the forms of coverings for the man-holes and to the substitution of a different method of joining the sections of the steam • pipes, which apparently prevented thereafter the occurrence of similar accidents. But, so far as appears, all the precautions which at the time seemed to be necessary were taken to make the work safe and secure. The plaintiff has, without fault on his part, suffered a serious injury, but we think the evidence offered by him, taken together, not only does not tend to show any negligence on the part of the public authorities, but rather to exempt them from the imputation of negligence. The judgment should, therefore, be affirmed. All concur. Judgment affirmed.