Sexton v. . Zett

Earl, C. If upon the trial it had been claimed that the defendant was liable for cutting the ditch across the sidewalk, as a wrong-doer, irrespective of the question of negli *432 gence, then it would have been proper for him to show that he cut the ditch by permission of the proper city authorities. But as it was claimed that he was liable upon the ground of negligence, it was wholly immaterial whether he had the permission of the city authorities or not; and hence the court did not err in excluding proof of the permission. He could have no permission from the city authorities that would shield him from the consequences of his negligence. It is a well settled rule that a person who interferes with a side-walk in a city and leaves it in a dangerous condition, is liable for injuries caused thereby, whether he knew it to be dangerous or not, and irrespective of any permission from the public authorities to do the work from which the injury arises. (Creed v. Hartmann, 29 N. Y., 591; Congreve v. Smith, 18 N. Y., 79; Congreve v. Morgan, 18 N. Y., 84; Storrs v. City of Utica, 17 N. Y., 104.) The court committed no error in refusing to submit the question of defendant’s negligence to the jury. In the case of Storrs v. City of Utica, supra, the court decided that if, in the course of a public improvement, it became necessary for the city corporation to make an excavation in a street, so as to render it unfit or dangerous to be traveled upon, it became the duty of the city to take measures, either by lighting the street or otherwise, to warn travelers of the danger. Here, there was a deep and dangerous excavation across the sidewalk, left open in the night-time, and no precautions whatever were taken to warn travelers of the danger. From these facts negligence is necessarily shown or inferred, and there was nothing in reference to them to leave to the jury. The judgment should therefore be affirmed with costs. All concur. Judgment affirmed with costs.