Tubesing v. City of Buffalo

Adams, P. J. : Upon the foregoing state of facts, as to which there is no controversy whatever, we think it was error to submit the question of defendant’s negligence to the jury. In reaching this conclusion we are by no means unmindful of the rule which requires municipal corporations to exercise a reasonable degree of care to keep their walks and streets, unobstructed, and in such condition that travelers may pass- over them without incurring [16] the risk of personal injury, but this rule does not absolutely inhibit ■ such a corporation from permitting certain portions of its walks and - streets to be devoted to such purposes as are necessary and useful to the occupants of abutting- premises, provided an ample and unobstructed passageway is left for the purposes of the public. (Dougherty v. Village of Horseheads, 159 N. Y. 154.) Thus, hydrants, hitching posts, shade trees, grass plots, guarded' . and protected by curbing and stones, have each been held to serve a useful public purpose, consistent, with the object for which streets are primarily designed, although in a certain sense and to a limited ■ extent they may obstruct the full and free passage of a street. (Ring v. City of Cohoes, 77 N. Y. 83 ; Dubois v. City of Kingston, 102 id. 219 ; Hubbell v. City of Yonkers, 104 id. 434; Hunt v. Mayor, 109 id. 134.) Furthermore, the owner of a building abutting upon a street may temporarily use and obstruct the sidewalk in front of his premises ■ to any reasonable extent for such purposes as are incidental to the ".business in which he is engaged ; and it is perfectly competent for a ■ municipality to authorize a limited portion- of the sidewalks in front - of stores and buildings occupied for business purposes to be permanently devoted to such contrivances as doors, grates and other like ■ openings to cellars and underground vaults where the same are convenient and beneficial to the enjoyment of the adjacent premises. (Jorgensen v. Squires, 144 N. Y. 280.) This privilege.is one which by universal custom has been accorded "to persons engaged in commercial pursuits in populous cities where the surroundings are such as to render the same an absolute neces-sity. Indeed, it is doubtful1 if the commerce of such a city as Buffalo could be conveniently or profitably conducted unless such infringements upon the technical rights of pedestrians were, to a reasonable -extent, permitted. In the present- instance it' seems that the doors which occasioned "the plaintiff’s injury were a useful and convenient adjunct to the premises in front of which they were located. They served the -double purpose of a skylight and a means of access to the cellar or vault beneath the walk, and, inasmuch as they liad been in use for "nearly six years, it may be assumed that they were constructed and ¿-maintained pursuant to proper municipal permission. (Jennings v. [17] Van Schaick, 108 N. Y. 530; Babbage v. Powers, 130 id. 281; Jorgensen v. Squires, supra.) This being the case, we fail to see wherein any liability attaches .to the defendant by reason of the accident which befell the plaintiff. But, over and beyond the reasons already assigned, we think it cannot with any propriety be held that the obstruction complained •of was of such a character as to impose liability upon the defendant for its failure to remove the same. A municipality does not insure the absolute safety of its streets .and walks. On the contrary, the obligation which rests upon it is ■ fulfilled when it exercises a reasonable degree of care to keep the •same free and unobstructed. Moreover, it is not bound to take notice of and remedy every slight elevation and depression or inequality in its sidewalks; nor is it chargeable with negligence when an accident which, according to common experience was not likely to happen, does occur by reason of some such defect. (Beltz v. City of Yonkers, 148 N. Y. 67; McCarty v. City of Lockport, 13 App. Div. 494.) The doors in question were elevated at the most but two inches above the surface of the walk; they were placed in close proximity' to the front of the building; between their outer edges and the •curb there was a perfectly smooth and unobstructed passageway of nearly nine feet, and this condition of things had existed for upwards of five years, during which time presumably thousands of people had walked over whatever obstruction they created without the slightest inconvenience. In short, the doors and their appliances were just such impedimenta as are common to the business •quarters of every large city, and to hold that, under circumstances such as this case discloses, their presence in the walk constitued actionable negligence upon the part of the municipality, would require an extension of the doctrine contended for beyond the point to which this court is prepared to go. It follows that the judgment and order appealed from should be reversed. All concurred. Judgment and order reversed and a new trial ordered, with ■costs to the appellant to abide the event.