Winters v. Mayor

Larremore, C. J., (after stating the facts.) That the defendant owed a duty to the public to keep its streets in safe and proper repair is unquestioned, and notice of any defect or obstruction therein might lawfully be presumed from lapse of time. But the case before us presents a somewhat different phase of the law holding the defendant to answer for a legal responsibility. The occupation of the street and sidewalk by a person engaged in the erection of a building is clearly within the authority of the law. Rehberg v. Mayor, 91 N. Y. 137. It appears from the evidence that the spike which caused the 696 injury, although not in use at the time of the accident, was necessary for the completion of the buildings in question. The city gave no authority for the occupation and use of the street or sidewalk. That, as above stated, was conferred by the law. Gorham v. Trustees, 59 N. Y. 660. It was strenuously insisted upon the argument that where two causes of inj ury contributed to an accident, either cause, proximate or remote, would afford a ground of recovery. The authorities cited to sustain this proposition are not applicable to the case under review. The case of Worster v. Railroad Co., 50 N. Y. 203, decided that a railroad company was bound to lay its tracks in a proper and secure manner, and was liable for any neglect resulting therefrom. Mullen v. St. John, 57 N. Y. 567, holds that the owner of a house adjoining a street must keep the same in proper condition So that it shall not fall; and, if it does, negligence will be presumed from any accident occurring thereby, and the burden of proof is cast upon such owner to absolve him from liability. Hume v. Mayor, etc., 74 N. Y 264, was a case within my personal consideration in its first instance, and was affirmed by the court of appeals mainly upon the ground that the city must be presumed to have had constructive notice of the defective condition of the wooden shed or awning that caused the injury. Ring v. City of Cohoes, 77 N. Y. 83, makes no change in the principle of law above referred to. Rehberg v. Mayor, supra, holds that the neglect of a public officer, (to-wit, a policeman,) or his mistake in not reporting as to an obstruction of bricks piled in the street, would not save the city from liability, and that the offer to prove the legal regulations as to the height of a pile of brick in front of a building in process of erection, which was rejected, was error. In the case of Goodfellow v. Mayor, etc., 100 N. Y. 15, 2 N. E. Rep. 462, a nonsuit was granted, which the court held to be error, thereby deciding that the act of a policeman whose duty it was to inspect the cross-walks in his precinct, and who had examined and failed to report- any defect in the same, did not discharge the municipality from liability if such defect was subsequently shown. The city had no control over the work to be done in the erection of the buildings, and the person doing the same is chargeable with any alleged negligence for improperly performing his duty. Pack v. Mayor, etc., 8 N. Y. 222; Kelly v. Mayor, etc., 11 N. Y. 432. The whole range of authority establishing -the liability of municipal'corporations seems to point to the correctness of the conclusion reached, by the trial judge and leads to an affirmance of the judgment appealed from.