Fitzgerald v. City of Binghamton

Boardman, J.: Plaintiff’s intestate was hilled by falling from an embankment on which was one of the defendant’s streets. The Dight was dark and rainy and there was not sufficient light to enable a person passing along the side of this street do discover its imperfections. The-evidence tends to establish that the deceased, while passing along this street, stumbled over some defect where the side of the street had been gullied out by rains and fell some thirteen feet upon a culvert, by which' he was stunned and rendered unconscious, and rolled from thence into a pool of water, where he was drowned. There were no sidewalks at these points nor guard railings. From the judgment in favor of the plaintiff, and from the order denying-a new trial upon a case made, the defendant appeals to this court. Three grounds for the reversal of such judgment and order are presented for our consideration : First. If negligence, was established upon the ,trial it was the negligence of the common council and mayor, who were, by the charter, in effect, commissioners of highways for said city, and by its charter the defendant is exempted from liability caused by their negligence in the care of this street. Second. The plan of this embankment was quasi judicial and for an error therein the defendant is not responsible. Third. There is no evidence to show that the deceased-was free from negligence which contributed to his death. We will discuss these questions in the order stated. There was enough evidence of negligence in the care of the street, its condition and want of repair, the absence of railings and the deficiency of artificial light to i-equire its submission to the jury. This is not seriously controverted by the appellant. By its charter the defendant is exempted from any liability to any person for the negligence of any officer or officers, agent, servant or employee who may be elected, appointed or employed pursuant to its charter. By the charter of the city of Brooklyn (Laws of 1862, chap. 63, § 39) the said city shall not be liable in damages for any nonfeasance or misfeasance of the common council, or any officer of the city or [335] appointee of the common council, of any duty imposed upon them or any or either of them by the charter or of any other duty enjoined upon them as officers of the government under the charter. In each charter provision is made for enforcing the performance of any duty by negligent officers by mandamus. By the Brooklyn charter an action for an injury may be maintained against such officers, while by the defendant’s charter such an action can only be brought against them in case of “ willful or gross neglect or intentional violation of duty,” of which there is no claim in this case. This plaintiff can, therefore, have no remedy unless against defendant. Ve think the cases of Fitzpatrick v. Slocum (89 N. Y., 358); Hardy v. City of Brooklyn (90 id., 435), and Vincent v. City of Brooklyn (31 Hun, 122), are in point and must control our decision in this case. The two charters are substantially alike in their features for exemption from liability. ' The learned judge, in Fitzpatrick’s case (p. 365), says : “ There must be a remedy in such a case where one i-s injured without fault of his own, by a defect in one of the streets or bridges of the city, either against the city or some of its officers.” In this case, as has been said, there has been no such “ willful or gross neglect or intentional violation of duty ” as will create any liability against any officer of the city. The liability of the common-council and mayor, acting as commissioners of highways, by the language used, is restricted and taken away in this case, if such liability could ever exist. We think the remedy has been properly pursued against the defendant. It is not the plan, upon which this street was constructed that was alone, if at all, in fault. The neglect to keep the same in repair,, the absence of guard rails or sidewalks, the insufficient lights, constituted evidence from which the jury has properly inferred negligence. In these respects the case is distinguished from Urquhart v. City of Ogdensburg (91 N. Y., 67) and other similar cases. Indeed, its features more nearly resemble the eases of Fitzpatrick v. Slocum and Hardy v. City of Brooklyn (supra), where it was held that an action would lie. The evidence ■ of absence of contributory negligence is much stronger than in Hart v. Hudson River Bridge Company (80 [336] N. Y., 622), or Jones, Administratrux, v. New York Central and Hudson River Railroad Company (28 Hun, 364 ; affirmed, without opinion, in 92 N. Y., 628); see, also, the opinion of the learned chief judge in Stackus v. New York Central and Hudson River Railroad Company (79 N. Y., 464). As is there said: “ Mere precedents are of little value. No two cases are alike in all their circumstances.” Other cases might be cited, which, by their resemblance to the present one, would appear to justify the taking of this case from the jury. But upon the whole evidence we think that the deceased has not been shown to have been guilty of any want of care, prudence or caution in traveling over the street which should prevent a recovery. His intoxication, if there is any evidence of it, is at most a circumstance for the consideration of the jur), in connection with the other facts in the case. We think the judgment and order should be affirmed, with costs. Hardin, P. J., and Follett, J., concurred. Judgment and order affirmed, with costs.