Ring v. City of Cohoes

Bocees, J.: The right of action rests upon the alleged improper manner of setting the hydrants as to locality. The street opposite the hydrant was obstructed by a pile of ashes which had been accumulating for a considerable period of time; but this fact was of importance only as the ash-pile Marrowed the surface of the street, open to travel at the place where the injury occurred; and hence, to some extent, bore on the question whether the road, in view of the manner in which the hydrant was placed, was, at that point, reasonably safe for public travel. The plaintiff was driving along the street, seated in a sleigh, when the horse took fright, became unmanageable, so that the plaintiff was unable to restrain or guide it with any precision. The horse ran, at a slight angle with the street, toward the hydrant; in passing which the cross-bar of the sleigh, attached to and connecting the thills, struck it, or its nozzle, and the plaintiff was thrown from the vehicle and seriously injured. The hydrant stood partly within and partly without the line of the curbstone, with its nozzle further projecting several inches into the roadway. The referee found that the defendant was guilty of negligence in erecting and maintaining the hydrant in such locality and position, and that such negligence contributed to the injury complained of; and further, that the plaintiff was free from fault in all respects. As regards the form of the hydrant, and as to its position in the street, there is no controversy on the facts ; and the referee finds, upon sufficient evidence to sustain the findings, that the cross-bar of the sleigh struck against the nozzle of the hydrant, or against that portion of the hydrant which projected beyond the curbstone into the roadway of the street. The street in the vicinity of the hydrant, and its narrowed condition by reason of the ash-pile, were described by the witnesses with particularity; as were also the pattern of the hydrant and its location with reference to the curbstone, and its proximity to the ash-heap. As to the general facts of the case there seems to be no dispute of any moment. The question then was, and this question, it seems, still remains for us to consider even although it should rest on conflicting evidence (Godfrey v. Moser, 66 N. Y., 250), whether the roadway was reasonably safe for travel in its surface, margin and muniments ? (Glidden v. Town of — 83 — Reading, 38 Vt., 52.) And this must be so when the particular highway and its alleged obstructions or imperfections are given in evidence from which negligence may or may not be deduced. The obstruction here complained of was at the extreme margin of the road-bed; and this fact was and is an important one to be considered, in determining whether the street was reasonably safe for public travel. But it must be held in mind that the defendant, having the right to control the entire width of the street, and to keep it free from obstruction from curbstone to curbstone, had a corresponding duty in that regard. (Morse v. Richmond, 41 Vt., 435.) The duty also in a city would be commensurate with the increased density of travel. (Fitz v. City of Boston, 4 Cush., 365; Bryant v. Inhabitants of Biddeford, 39 Maine, 193.) Undoubtedly in this case there was a fair question, for the trial court on the evidence submitted, whether the defendant was or was not negligent in regard to the matter of complaint. In Clemence v. City of Auburn (11 N. Y. S. C. [4 Hun], 386), the obstruction or imperfection in the street (a slight deflection in the sidewalk) seems almost insignificant as a ground of negligence, yet the court held a nonsuit improper and set it aside. This decision was affirmed in the Court of Appeals. (66 N. Y., 334.) It cannot, as we think, be held in this case that the defendant was absolutely free from negligence and consequent liability; nor that the findings of the referee to the contrary of this were without sufficient support on the evidence. As to the question of contributory negligence on the part of the plaintiff, there is an absence of all proof showing that he was in fault; and the conclusion of the referee that he was free from fault is well found. It is urged that there is no proof that the location of the hydrant in the street, partly within the line of the curbstone, with its nozzle further projecting over the road-bed, was unusual or out of the ordinary mode of setting them; nor that any like injury had ever before occurred from this or any similar cause. It was enough to show the situation and surroundings of the hydrant, and the circumstances attending the injury; then the question would arise whether the hydrant was properly placed with a view to public safety. And in case it should be found that it was improperly located, so as to constitute a nuisance in the highway, an action would lie for an — 84 — injury thereby occasioned, as well for the first of such injuries as for any subsequent one. The party would not be barred of his right of action until he could show a prior injury from the same or from a similar cause. This case differs from that of Dougan v. The Champlain Transportation Company (56 N. Y., 1), in this, that there it was shown affirmatively that the nonfeasance complained of was in accordance with the general custom in similar cases, hence not against common prudence. The case in hand more resembles Blanchard v. Western Union Telegraph Company (60 N. Y., 510), where a recovery was upheld, although the injury was the first that had occurred from the alleged cause; and notwithstanding other parties had frequently passed the obstruction without injury. Nor was the defendant here protected by reason of the judicial character with which its agents who placed the hydrant were clothed. This point was settled in Clemence v. The City of Auburn (66 N. Y., 250), against the defendant. This decision is but one of many to the like effect. (Ninns v. City of Troy, 59 N. Y., 500, and cases cited on page 508.) These cases hold, that in making improvements in the public streets, and in keeping them in repair,. the duty becomes imperative on the officers of the municipality to act with due regard to the safety of travelers, and that for any neglect or omission of duty in that regard an action will lie at the suit of any party specially injured thereby. It appears that the horse was blind and was running away on the occasion of the accident, and the question is put, with fairness of statement and not without great force, whether the defendant was bound to provide a safe street for a blind runaway horse ? It must be held in mind that there is no proof that the horse was vicious or addicted to running away, and that the plaintiff was free from fault in his management of the animal. Then the answer to the question is, that the defendant was bound to see to it, that the street was unobstructed for public use, or in more precise language, that it was reasonably safe for general travel. The plaintiff had a right to drive a blind horse on the public street; and If, without any fault attributable to him, he was injured while driving such animal, through the culpable misfeasance or nonfeasance of the defendant, the latter would be as much responsible to the former as if his horse had been entirely sound. (Sleeper v. San85 down, 52 N. H, 244.) For any tiling that is made to appear with certainty, the same results, as in this case occurred, would have followed had the plaintiff’s horse been without the infirmity of blindness. It is a common and true remark that a frightened horse ■running away is but a “blind brute.” The mere fact that the horse was blind should not bar the plaintiff’s right of action, but doubtless this should be considered in determining the question of prudent conduct on his part. Under many circumstances, if not under all, a person driving a blind horse is bound to the exercise of increased vigilance and care in its use. But the mere fact that a person is driving a blind horse when an injury occurs by reason of a defective highway, will' not deprive him of the redress to which he would be otherwise entitled. (Davenport v. Ruckman, 37 N. Y., 568.) Of course he must be blameless in the management of the animal, otherwise he could not recover. Nor will the fact that the horse was running away at the time the injury occurred, necessarily defeat the plaintiffs action therefor. But in Maine the rule is, that in order to a recovery in a case like this, it must be proved that the injury was occasioned solely by the defendant’s negligence, and not by such negligence combined with another cause (as the fright and running away of the horse), for which it was not responsible. (Moore v. Abbot, 32 Maine, 46.) In this case Chief Justice Shipley said that to establish his action, the plaintiff must prove that the injury was occasioned by the default of the defendant alone, and not by that default and some other cause, for which the defendant was not responsible. (See, also, Farrar v. Inhabts. of Greene, 32 Maine, 574; Anderson v. City of Bath, 42 id., 346; Bigelow v. Reed, 51 id., 325; Moulton v. Inhabts. of Sanford, 51 id., 127.) It ought perhaps to be here observed that this rule was not deemed settled in this State (Maine), until the decision of Moulton’s case (supra); and then only by a divided court, the chief justice delivering a very able dissenting opinion, wherein the subject is fully considered. There are cases in Massachusetts also substantially in accordance with the rule laid down in the courts of Maine. (But see Palmer v. The Inhabts. of Andover, 2 Cush., 600.) In New Hampshire, however, the law is settled that when the plaintiff is not in fault, but the injury is the combined result of accident and of the defend — 86 — ant’s neglect to repair the road, the latter will be held liable. (Winship v. Enfield, 42 N. H., 197.) In this ease the learned judge, speaking for the court, says: “ The greatest precaution and the most penetrating foresight cannot prevent casualties by the safest modes of conveyance. Accidents will occur. A nut or bolt may drop, a trace may become disengaged, or a horse take fright and become unmanageable; it is under circumstances like these, when life and limb are imperiled, that the traveler who is in no fault himself, is entitled, if ever, to the benefit of a sufficient and unincumbered highway. The injuries are few that are received upon highways, however defective, that are not induced, in a greater or less degree, by some previously unknown defect, either in the carriage or harness, or by the fright of the horse, or some similar cause, usually termed accidental; and to say that under circumstances of danger and peril from those and other accidental causes, the traveler is not entitled to the safety that a highway unincumbered and without defects, that is, a highway made reasonably safe against the occurrence of such, accidents as these, would afford at a time when, of all others, he has the greatest need, would seem to be repugnant to reason and common sense.” (See also Clark v. Barrington, 41 N. Hamp., 44; Tucker v. Henniker, 41 id., 317.) The decisions in Yermont accord with those in New Hampshire. (Hunt v. Town of Pownal, 9 Vt., 411; Kelsey v. Town of Glover, 15 id., 708; Morse v. Town of Richmond, 41 id., 435, on page 442; Whitcomb v. Town of Fairlee, 43 id., 671, on page 675.) And in Connecticut, in the case of Baldwin v. Greenwood Turnpike Company (40 Conn., 238), it was decided that a traveler, sustaining an injury by reason of a defect in a highway, attributable to the negligence of a corporation bound to maintain it, was not barred of his right to recover by reason of the fact that on his own part an accident had contributed to the injury, if it was in no way attributable to his own negligence. In this case the plaintiff’s horse, when running away, fell over the side of a bridge, by reason of a defective railing which the defendant was bound to keep in repair, and was injured. The court, on a careful examination of the subject in all its bearings, held the defendant liable, laying down the law as above stated. The court remarked as follows : “ This brings into consideration the question whether the defendants are relieved — 87 — from liability for an injury caused by 'their negligence, combined with an accident for which no responsibility attached to either party,” and it was said in the examination of this question, “ the plaintiff performed no negligent act, nor can we see that he failed to do any thing by the performance of which the injury might have been avoided; he was providentially prevented from acting;” and further, the court adopted with approval the following language from Hunt v. Town of Pownal (supra): “ It is to guard against these constantly recurring accidents that towns are required to guard in building highways. The traveler is not bound to see to it that his carriage and harness are always perfect, and his team of the most manageable character and in the most perfect training, before he ventures upon the highway.” (See also Ward v. Town of North Haven, 43 Conn., 148, on page 155.) The cases in the three States last above referred to, hold that the traveler is bound only to the exercise of ordinary care and prudence. In Pennsylvania also the rule is the same as in Yermont, Connecticut and New Hampshire. (Lower Macungie Township v. Merkhoffer, 71 Penn., 276; Hey v. Phil., 81 Penn., 44.) The case of Manderschiel v. City of Dubuque (25 Iowa, 108) is also in point; as is also Docher v. Town of Fitchburgh (22 id., 675), Houfe v. Town of Fulton (29 id., 675), Havens v. Town of Fox Lake (33 id., 438). The result of all the decisions above cited, except those in Maine, are, as I understand them, in accordance with the rule laid down in Kelsey v. Town of Glover (supra), that it is the duty of a municipality, bound to construct and maintain highways, to provide for the reasonable safety of travelers in reference to such accidents as may be expected to happen thereon, and that when a traveler is not in fault, but an injury happens to him which is the combined result of accident and negligence, attributable to the municipality by an omission to keep the road in repair, the latter will be held liable. We are not cited to any case in our own State wherein this precise question has been considered. There were some remarks in Wilson v. Susquehanna Turnpike Company (21 Barb., 79) bearing upon it, but the question was not there decided. The case of Clark v. Union Ferry Company (35 N. Y., 485) may perhaps have a bearing on it. In this case the plaintiff took a young horse on to the ferry-boat, and when attempting to drive him off the boat he reared up, became frightened, backed against the chain at the rear — 88 — of the boat, which was defective and an insufficient protection, fell into the water, and was drowned. A recovery by the plaintiff was sustained. Peckham, J., speaking for the court, said: “An individual has a right to take a young horse on a ferry-boat. He may be timid or easily frightened, and yet the owner is guilty of no negligence in taking him on the boat. He must there exercise proper care in the management of the horse, and that is all that cam, be requi/red of him. If the horse be injured or lost through the negligence of the defendant, the latter is liable.” But the precise question discussed in the cases above cited was not- here raised, as will be seen by a casual examination of this case. In Wyckoff v. Ferry Company (52 N. Y., 32) a recovery was sustained under a similar state of facts. In Vincett v. Cook (11 N. Y. S. C. [4 Hun], 318) the wall of the defendant’s house being in a dilapidated condition, was blown down during a. storm of unusual violence, falling upon the-plaintiff. A recovery by the latter for the injury was sustained. In Cox v. Westchester Turnpike (33 Barb., 414) the plaintiff’s horse was injured on the highway. It was held that negligence on the part of the defendant, the turnpike company, from which the injury resulted, and the exercise of ordinary care by the plaintiff, gave a right of action. (See, also, Center v. Finney, 17 Barb., 94.) It has been repeatedly held that where an injury is occasioned by the joint negligence of several, the party injured being himself without fault, may have his action against all or either of the persons causing the injury. (Webster v. H. R. R. Co., 38 N. Y., 260; Sheridan v. R. R. Co., 36 id., 39; Colgrove v. R. R. Co., 20 id., 492; Spooner v. R. R. Co., 54 id., 230.) Nor will the comparative degrees of culpability affect the liability of either. (Barrett v. R. R. Co.,, 45 N. Y., 628.) Nor will it make any difference that the negligent acts were separate and independent of each other. (Slater v. Mersereau, 64 N. Y., 138.) If the negligence of a third party would not discharge another from liability whose negligence contributes to the injury, it is difficult to see on what principle an accidental circumstance, for which no one is responsible, can work that result. Hndoubtedly the weight of authority is in favor of the rule of law laid down in those States other than Maine. It seems the more reasonable doctrine, and, as we think, it accords with sound principle. It seems but just and right that when the — 89 — plaintiff is without fault, and the injury is the combined result of pure accident and the defendant’s negligence, the latter ■ should be held liable. Highways should be constructed, protected and guarded in reference to possible accidents, and they should be made reasonably safe to travelers in case accidents should happen, as they must; such accidents as often do occur and may be expected occasionally to occur on highways. So where the antecedent cause is a pure casualty, then, as was said in one of the cases cited, the defect causing the injury must be deemed' the ecmsa próxima. If correct in the above conclusions the judgment appealed from should be affirmed. Judgment affirmed, with costs. Learned, P. J., and Boardman, J., concurred. Judgment affirmed, with costs.