Dennis v. Village of Elmira Heights

Merwin, J.: This action is brought to recover damages for personal injuries sustained by the plaintiff on .tlm evening of July 3, 1897, by reason, as she claims, of the negligence of the defendant in not maintaining proper barriers against an excavation or embankment in Eighth or Hurlburt street, which was one of the public streets of the defendant. The defendant was incorporated on May 1, 1896. It included within its boundaries a quantity of land formerly owned and used by the county as a fair ground, and upon which there had ■ been a race course. It had b.een conveyed in 1892 by the county to Compton & Hurlburt, by whom, after the removal óf the buildings and fences, the ground was laid out into lots, and streets were indicated — 405 — upon a map or plot that was recorded. One of those streets running nearly east and west was Eighth street which seems to have been accepted by the village. Upon the east of this property was a street called Grand Central avenue, upon the south was McCann’s boulevard and on the west was the Erie railroad. In 1896, and for several years previous, there was a driveway passing from McCann’s boulevard northerly through the central portion of this property. It started from a point in the boulevard where had been the entrance to the fair ground, thence proceeded northerly to the race course and then, following that, crossed the locality of Eighth street and proceeded northward. In 1896 the defendant, for the purpose as it may he assumed of improving Eighth street, established its grade, along where it was intersected by the driveway referred to, and in accordance therewith the street was graded by the village authorities during that year. Eighth street was sixty feet wide and the grading included thirty feet of the central portion. At the place where the driveway crossed Eighth street, this grading at the outer edge of the thirty feet upon either side was to the depth of about two and a half feet, leaving an abrupt descent from the surface of the street as it remained outside of the grading. This, as one witness says, was as ■abrupt as a gravel bank can be cut. There is evidence tending to show that the driveway was well defined, having a well-worn beaten track for wagons and teams and was frequently used by the public. The owners of the property in laying out and selling lots paid no attention to the driveway, but practically its course had not been interrupted by anything that was done until tfie grading of Eighth street. This operated to make a break with a sudden declivity to the depth of the grading. Some teams had passed over it necessarily lessening to some extent the abruptness. In the .fall of 1896 there was a barrier upon either side within the outer line of the street. It consisted of posts and boards. It does not appear who put up the barriers. The one on the south side of the street was removed in the spring of 1897 by some person unknown. The one upon the north side was thrown down by a traveler at about the same time as it may be inferred. In the evening of July 3, 1897, the plaintiff, with her husband and daughter and a Mr. Wicker, left Elmira in a two-horse carriage. — 406 — Wicker was driving. They proceeded northerly to the village of Elmira Heights and then passed along Grand Central avenue northerly until, by reason of fireworks about a block ahead of them, which disturbed the team, they, at the suggestion of Mr. Dennis, turned westerly into what appeared to be one of the streets of the village. They passed along this until they came near to the driveway in question, when, seeing ahead of them a red signal light, 1-they turned northerly into the driveway. It was then about nine o’clock, but was light enough, as Mr. Dennis testifies, so that they Could see the beaten path. They passed along this northerly, crossing one street, and then, as they came to the next one, which was •Eighth street, the team and carriage went down the declivity on the south side of Eighth street, and the plaintiff was thrown out and injured. It may be inferred that the situation at the intersection of the driveway and Eighth street was not known to or observed by "the parties in the carriage. There were then no barriers or anything to call the attention of travelers in the night to the situation. " The court in effect held that there was no duty upon the defendánt to furnish protection to those using the driveway. There is no point about contributory .negligence. This is not a case where one traveling along a highway has been injured by reason of some obstruction in it or some dangerous situation in or so near it as to impose the duty of protection upon the municipality. Many of the cases, therefore, to which we are referred •do not apply. It is not claimed by the plaintiff that the driveway is a public street. The defendant claims that, if it is not a public highway, the plaintiff cannot under her complaint recover; that the negligence alleged is with reference to the condition of the driveway as a public highway and not with reference to any neglect to maintain barriers on Eighth street. In the complaint it is alleged that Eighth street is one of the highways laid out and used by the defendant; that prior to the laying out, grading and excavating in that street, there had been a well-used beaten highway crossing Eighth streét at right' angles; that in the laying out and establishing Eighth street" the defendant caused an excavation to be made about .three or more feet in depth at the place -where this traveled highway crossed Eighth street and this left there a sharp bank; that the highway which crossed Eighth — 407 — street had been used for years and its use was known to the defendant, but that the defendant negligently failed to place and maintain any barriers or notice to people driving upon the said highway that an excavation therein had been made or that there was any danger in traveling over it, and that the accident to plaintiff occurred by reason of such negligence. The complaint is open to the construction that the pleader regarded the driveway as a public highway. The negligence, however, is not alleged to be the excavation or grading, but the failure to maintain barriers or give notice. From the case it appears that early, in the trial it was conceded by the plaintiff that the driveway had never been laid out as a street, but that the public were permitted to travel there. No objection was then raised as to the pleadings. The basis. of the charge against defendant was its negligence in not maintaining barriers at this particular locality. If, upon the facts shown, negligence is attributable, the allegations of the complaint are sufficient to authorize a recovery. At most the plaintiff did not prove her case as strong ■as she expected to, and the question is whether she proved it strong enough to give her the right to go to the jury. The question then is whether the defendant owed any duty of .protection to travelers coming along the driveway. The measure of duty upon a 'municipal corporation in regard to people coming upon the street from a private way or a road not recognized as a ■public highway under the circumstances shown in this case has not, so far as the cases cited by counsel show, been determined in this State. In Carpenter v. Citry of Cohoes (81 N. Y. 21) there was no •charge of negligence upon the ground of failure to barricade the .street. The situation had not been made dangerous by any act of ■the city. In Barr v. Village of Bainbridge (42 App. Div. 628) the injury occurred by reason of the horse of plaintiff taking fright at a pile of rubbish improperly allowed by the defendant to be within .the limits of the highway, and the fact that the plaintiff reached the .highway from a cross road nearby was not deemed to affect the question of defendant’s liability. The question has been considered in other States. In Burnham v. City of Boston (10 Allen, 290) the plaintiff, coming upon the street from a traveled way, was injured by reason of an •excavation in the street which had been sufficiently barricaded to — 408 — protect travelers coming along the street, but not those coming in from the'traveled way. It was held by the trial court that the right of the plaintiff to recover depended upon whether the traveled way upon which he entered the street had been dedicated to the public. This was held to be error and the following rule was stated: “If a travelled way, either public ór private, over lots ■ adjoining a public street in a city and leading into that street, for a long time before and after the existence of an excavation in the street, has been so much used by persons having occasion to pass as to become known as a common way for travel and to make it reasonably necessary for the city, in the exercise of due and proper care, to provide a barrier for the purpose of preventing travellers, who pass over such way from the adjacent lots into the street and use due care, from falling into the excavation, and the city have unreasonably omitted to erect such barrier, they are guilty of negligence and are liable for an injury happening to a traveller in the street by reason thereof.” In O'Malley v. Parsons Borough (191 Penn. St. 612) the plain , tiff, while entering upon the street at night from a private way, was injured by falling over an abrupt embankment, produced by the defendant in improving the street, and left unguarded. A verdict ^ for the plaintiff was sustained, the court holding that “ Whenever, owing to the existence of embankments or excavations alongside of a public street or highway it would be reasonably prudent and nec- • essary to erect and maintain, railings or other' suitable barriers to prevent accidents to'passengers traveling along, coming into or leaving the public street ór highway at customary and proper points, it becomes the duty of the proper municipal authorities to provide such guards or barriers; and its neglect to do so will render it liable in. damages to those, who, in the exercise of ordinary and.reasonable bare themselves, sustain injury in consequence of such neglect.” In Orme v. City of Richmond (19 Va. 86) the plaintiff was injured under circumstances similar to those in the O'MaUey case. 'The city was held to be liable, the court saying that the city was bound to use all necessary measures to guard against injury to persons coming upon its streets from private ways over adjoining lots upon that portion of its streets which may be inclosed by barriers. In Omaha v. Randolph (30 Neb. 699) the plaintiff, in' driving — 409 — into the city of Omaha after dark, followed a public way that had been used by the public for years, although never laid out as a road. The city was at the time grading one of the city streets and had excavated the same perpendicularly to a depth of three feet at the intersection of the way, but placed no barriers or lights at or near the same. It being dark the plaintiff was unable to see the condition of the street, and his team was precipitated into the excavation and the plaintiff was injured. It was held that the city was guilty of negligence. On the other hand, it was held in Goodin v. The City of Des Moines (55 Iowa, 67) that the city was not liable for a failure to guard its streets from approach by private ways at points where such approach has been made dangerous by recent excavations by the city. It was said that the city was not bound to provide a safe, or any, way by which the streets may be entered from private property ; that the citizen or traveler must get into the public ways of a city as best he can. » In the present case there exists, as we may assume, a well-defined and well-traveled road, not a public highway, and, therefore, a private way, which'the public has been accustomed to use for several years. This use was of such a character and extent that the village authorities must be presumed to have known it, or the jury had a right to .so find. Such use prior to the grading was perfectly safe. When, then, the village, in the exercise of its undoubted right, in the process of grading lowered the street so that the entrance to it from the .driveway became dangerous, should it be said as matter of law that there was no duty upon the defendant to guard the approach or make it reasonably safe? Under the proof the jury might have found that the village authorities might have reasonably expected that the travel would continue, and that in the absence of bander or notice accidents like the one here involved would be likely to occur. The rule applicable to cases like this may, I think, be fairly stated as follows : If a road apparently, though not in fact, a public highway, is commonly used by the public, and a municipality, in the exercise of its right in improving an intersecting street, leaves the approach from the road in a dangerous condition, the duty of the — 410 — municipality to the public requires the exercise by it of reasonable care to the prevention of such accidents as may reasonably be anticipated to happen to those traveling upon the road with due care and in ignorance of the danger. It follows that a case was presented for the consideration of the jury, and that the nonsuit should not have been granted. Judgment and order reversed on the law and the facts and new trial granted, costs of appeal to the .appellant to abide the event. All concurred, except Kellogg, J., dissenting in an opinion.