Collett v. Mayor

Rumsey, J.: Down to the month of April, 1897, there existed on the west side of Riverside drive in the city of Hew York next to the bridle path a foot path which had been separated from the bridle path by a narrow strip of grass and a line of curbing. At that time a bicycle path was laid out upon the easterly portion of the foot path so that it lay between the bridle path and the remaining portion of the foot path. • Shortly after it was constructed there were made, opposite the place where One Hundred and Eighth street entered the Riverside drive, openings by which persons coming out of One Hundred and Eighth street on their wheels could by crossing the drive enter the bicycle path. There were two of'such openings separated from each other by grass plots. Persons coming from One Hundred and Eighth street were expected to enter the path hy the right-hand opening, which was about thirty feet wide. About twenty feet to the north of the opening was a grass plot, and extending from it to the south towards the opening in the bicycle path was a line of curbing about twenty feet in length, which had been left there when the opening was cut through. This line of curbing was a few inches in height, and was composed of bluestone of almost the same color as the stone of which the surrounding macadam road was built, so that in the evening it was difficult to distinguish it from the road. The only light in the neighborhood was a gasoline lamp in the center of the carriageway, and about sixty feet from the bicycle path. The light from this lamp was not — 396 — sufficient to enable one riding his wheel at night to distinguish the curbing. The entrance to the bicycle path had been constructed for some weeks before May 16, 1897, and had from the time of its construcr. tion remained in the condition above described. On the night of the" 16th of May, 1897/ the plaintiff came out. of One Hundred and Eighth street on his wheel and crossed Riverside drive, intending to enter the bicycle path. To do so he took, as he was required to do, the right-hand entrance. In addition to the light from the gasoline lamp above mentioned, he had upon his wheel a lamp which threw its rays from fifteen to twenty feet, but the light from it was not sufficient to enable him to distinguish the curbing from the surface of the roadway about it. He was riding slowly. When, he came to the entrance, instead of going to the south- of the curbing, he went so far to the north that he ran against it and was thrown from his wheel,"receiving serious' injuries, to recover damages for which he brought this action. At the trial a verdict was ordered against, him at' the close of the evidence, and from the judgment so entered this appeal is taken. - While this curbing was outside of the line of the entrance to the bicycle path, yet the jury' might have found from the evidence that that portion of the drive to which the path was intended to be confined was so dimly lighted that one approaching the entrance would not be able to distinguish the boundary line between it and the path, and could not see the curbing and could not tell precisely where the entrance to the path was. It was in evidence, and not disputed, that during the time the curbing had been in that position a good many people had ,run into' it who were more or less injured, and that fact was known to the policeman in charge. It was also apparent from the evidence -.that the bicycle path was used by a very large number of people every night, and for that reason .policemen' were stationed there at night as well as during the day. The entrance was made for the use of those bicycle riders who had occasion to enter the path at that place. It is common knowledge that if one riding a wheel runs into an obstruction he is likely to be thrown from his wheel and injured. Since the path was intended for persons using that kind of vehicle, subject to those risks, it-was the duty of the officers of the corpora — 397 — tion to so construct it that it would, be safe for such use. It is quite clear that the existence of this curbing, so close to the apparent entrance of the path, and so situated that one attempting to enter it could not-tell whether the curbing was within the boundary of the path, constituted a defect, and it was, therefore, the duty of the officers of the defendant to use reasonable care to see that some notice or information of its existence was given to those using the entrance so that they might avoid the danger. (Ivory v. Town of Deerpark, 116 N. Y. 476; S. & R. Neg. § 356.) It cannot be said that the plaintiff, in attempting to enter the path, was not using reasonable diligence. He testifies that, as he approached, the light was not sufficient to enable him to detect the entrance and become aware of the curbing.. .He had no reason to anticipate any such obstacle would be in the highway. Therefore, whether or not he was guilty of negligence, was a matter for the jury. The result is that, unless some defense is established by the evidence, the court erred in directing a verdict for the defendant. The defense insisted upon is, that this curbing was left where it was in pursuance of the plan adopted by the corporation when the bicycle path was laid out; and it is claimed that the act of the Corporation, in leaving the curbing in its position, was a quasi judicial act upon which negligence cannot be predicated. While it is the duty of every corporation, which has occasion to lay out a highway or to open a street, to use reasonable care to see that the street should be so laid out as to be reasonably safe for persons using it, the law recognizes tliat, under certain circumstances, it may be necessary to so construct the street that it may not be perfectly safe for travel; and when that is the case, and the street is in such a condition- that it is unsafe as a necessary result of the plan of its construction, the courts have held that the corporation is not liable for any injury to one passing, which arises solely and purely because of the defect in the plan adopted. Biit it is quite manifest that such .a rule, tending as it does to relieve a corporation very largely from the results of the carelessness or ignorance of its officers, and which tends to increase the danger to persons using the streets, is not to be extended to cases which are not clearly included within it. [Kiernan v. Mayor, 14 App. Div. 156.) Before a corporation can claim exemption from liability for a defect in a highway because — 398 — of a fault in the plan, it must be made to appear not only that the work was done precisely in accordance with the plan, and that the injury resulted because of it, but that the plan was.one adopted by the corporation (Clemence v. City of Auburn, 66 N. Y. 334); and it must also appear that if the defect of the plan is such as to make the street dangerous, some steps have been taken, so far as possible, to remedy the defect, or to advise persons using the highway of the existence of the defect, so that they might protect themselves against it. (S. & R. Neg. § 275, and cases cited; Munk v. City of Watertown, 67 Hun, 261.) In this case it appears from the testimony of the engineer who opened the entrance.that no plan was adopted by the authorities of the city. He testifies that after the bicycle path had been completed for some little time he was directed to open this entrance by the park commissioners, but he testifies that he received no directions as to how it was to be opened. He says that he found a basin .head at the front to which this curbing extended which he thought if permitted to remain in the center of the entrance where he found it would be an obstruction making the. entrance unsafe, and that upon looking the ground over he came to the conclusion upon balancing the dangers of the basin head and the curbing that the danger to be apprehended from the head was greater than the curbing. So it was a pure. question of his judgment whether it was more dangerous to leave the basin head than to leave the curbing and he decided and did leave the curbing. But it is evident that in so doing he did not pursue any plan given him by the city authorities, but that he acted on his own authority and judgment. It is clear, therefore, that this defect was not caused by carrying out a plan under which the engineer was directed to work. This case is more like the case of Clemence v. City of Auburn, where the plan' followed was one ordered by one of the common council who saw fit to do so and not the one adopted by the common council, and the court. held that the plan suggested by the chairman of the council could not be said to be a plan adopted by- the city, and for that reason the doctrine as to a quasi judicial proceeding did not apply. But in this case the rule does not apply for another reason. It is not denied that this curbing extending into the bicycle path was a — 399 — dangerous obstruction. That fact not only appears by the testimony of the plaintiff but is warranted by the testimony of the engineer who left it there. It was, therefore, an obstruction the danger of which was known to the proper authorities of the city, and it was their duty to see that reasonable care was used to warn persons of its existence so that they might avoid it. (Ivory v. Town of Deerpark, 116 N. Y. 476; Pettengill v. City of Yonkers, 116 id. 558 ; Maxim v. Town of Champion, 50 Hun, 88; Dillon Mun. Corp. [3d ed.] § 1024; Storrs v. City of Utica, 17 N. Y. 105.) It cannot be denied that such notice of the obstruction should have been given that persons approaching the entrance might have avoided the danger. The lamp which would have under certain circumstances shown this defect, was, because of the particular circumstances existing here, insufficient. But it is said that this was not a public highway but a part of one of the parks of the city, and that it is not the duty- of the park commissioners to see that it was kept lighted at night, and on that point is cited the case of O'Rourke v. Mayor (17 App. Div. 349). In that case it was held that it was not negligence for the park commissioners to fail to light a walk in a park for pedestrians so as to advise them of steps down which it was necessary to go. But that case was put purely upon the ground that their duty was only to keep the walks reasonably safe; that the construction of the steps was not improper; that the walks were not expected to be used at night to the same extent that the streets were, and that as the walks were not to be so used, it was not the duty of the city to light them so that the attention of people would be called to irregularities in their surface; and that people walking in the parks at night have no right to assume that the surfaces are continuous, as they might do with reference to the walks of a street, and they have no right to walk along regardless of the fact that the walks are not continuous. This case, however, was entirely different. It appears affirmatively that this bicycle path was used by great numbers of people not only in the daytime but at night, and that fact must have been known to the authorities of the city. It was their duty, therefore, to see that the path so used was reasonably safe for the use for which it was intended; and, as it was intended for such vehicles, that a slight obstruction would be a defect, — 400 — it was their duty to see that no such defect existed, or, if it did exist, to give such notice of its existence that one. approaching might have an opportunity ■ to avoid • it. Although it is to he expected that more people would-usé the bicycle path in the' daytime-than in the night, yet it was not closed at night; and it is the-duty of the park commissioners to see that every place to which people are admitted at night is reasonably safe, and if they fail in that duty the city is liable whether the.accident occurs, in the daytime or at night. For these reasons the judgment must be reversed and a new trial ordered, with costs. to the appellant to abide the event. Van Brunt, P. J., Patterson and Hatch, JJ., concurred; Ingraham,- J., dissented.