Birngruber v. Town of Eastchester

Hirschberg, J.: The plaintiff has recovered damages from the town of Eastchester for injuries received while passing over a sidewalk on a public and much traveled street in the unincorporated village of Tuckahoe, in said town, on a dark and stormy night, December 31, 1898. The town authorities had macadamized the highway the year before, and [81] in so doing had lowered the grade at the point in question so that the roadbed was considerably below the level of the sidewalk. The owner of the abutting premises, in order to secure easy access to his property with vehicles from the street, had cut down the sidewalk ■so that there was a fall at the place of the accident from a foot to ■eighteen inches in depth. The precise time when this cut was made does not appear, but the property owner admitted that it was ■a long time before the accident, and the jury was justified in believing that the commissioner of highways had ample knowledge of its existence. No question was raised as to a sufficiency of funds with which to have made the highway reasonably safe for travel, and the answers to the general questions of the defendant’s negligence and the plaintiff’s freedom from blame involved in the verdict' are sufficiently supported by the proof. As to the plaintiff’s contributory negligence, it is to be noted that it was snowing and the walk was, slippery. He was walking slowly, and although familiar with the neighborhood, had never paid especial attention to the place, or had any reason to believe that there was danger in attempting to pass it. As was said in Shook v. City of Cohoes (108 N. Y. 648): “Whether-the plaintiff was guilty of negligence contributing to the accident was a question of fact for the jury. The trial judge could not properly rule, as matter of law, that she was guilty of culpable imprudence in attempting to pass over the ■ obstructions upon the sidewalk, although they were known to her. (Pompfrey v. Village of Saratoga Springs, 104 N. Y. 459.) Whether she could pass over them in the exercise of proper care, or whether she'was bound to go around them into the muddy street, were questions of fact for the jury.” The case is distinguishable from those cited by the defendant. In Weston v. City of Troy (139 N. Y. 281) the accident occurred in daylight.when the ridge of ice was plainly visible, and it did not appear whether the plaintiff was walking fast or slow,, or indeed paying any heed what-' ■ever to the obvious danger. In Caven v. City of Troy (32 App. Div. 154) the deceased knew that she was approaching, to use her •own language, “ a terrible dangerous place,” and nothing appeared to indicate that she exercised any care to avoid the danger of which she had knowledge. On the question of defendant’s negligence it is [82] claimed that as there is no provision in the Town Law (Laws of 1890, chap. 569) requiring the maintenance of sidewalks there can be no liability based on the defective condition of such a walk. The controlling principle is stated in Saulsbury v. Village of Ithaca (94 N. Y. 27 at p. 30): “ It is true that whether a municipal corporation shall-build, or permit to be built, a sidewalk on any of its streets, is matter of discretion not to be regulated by the courts, yet when a -sidewalk is built with or without its permission, it becomes responsible for its condition -and bound, so long as it exists, to keep it in order. This duty is ministerial and not judicial. (Hines v. City of Lockport, 50 N. Y. 239; Hyatt v. Village of Rondout, 44 Barb. 395; 41 N. Y. 619; Vogel v. Mayor, etc., 92 id. 10; 44 Am. Rep. 349.) In this case, therefore, it can make no difference how the walk came into existence, if the corporation, with notice, permitted it to be used for public travel.” But the sidewalk in this case was actually constructed by the. defendant. Provision for such sidewalks has long existed in the statutes, and may be found in the Highway Law (Chap. 568, Laws of 1890, §§ 43, 45); and it was held in Anderson v. Van Tassel (53 N. Y. 631, 632) that “ overseers of" highways, in the performance of their duty, to keep in repair the highways in their respective districts, have jurisdiction over every part of the highway to its entire width.” In the absence of authority we should not hesitate to hold that where a town constructs a highway with a sidewalk for the use of the inhabitants of a village, the duty to ■ keep the sidewalk in proper order for travel applies ■ equally-as to the' center of the street. ■ The character of the traveled walk enjoins that duty in the same sense and degree as was said in Ivory v. Town of Deerpark (116 N. Y. 476, 482) that “ The fact that this road had been used for the public travel many years, and had heen recognized and treated, by the constituted authorities of the town as a highway, gives that.character to it, for the purposes of making the defendant responsible to a traveler upon it, for injuries sustained by him in consequence of the negligence of the commissioners in failing to keep it in suitable condition and repair.” Ho other questions are presented which require special discussion. The judgment and order should be affirmed. Judgment and order unanimously affirmed, with costs.