Reinhard v. Mayor of New York

By the Court.—Brady, J. The plaintiff in this action was severely and permanently injured by the upturning of a coal slide grating, which was neither fastened by a chain nor securely resting on its bed. There was evidence to show that it had been insecure for some time prior to the accident, and also evidence that improvements had been made in gratings or covers, which made them, if not absolutely secure, much more so than the one upon which the plaintiff stepped, and which was [248] the cause of his injury. The defendants claim to be released from liability, because— 1. There was no proof of any notice to them of the insecurity or defectiveness of the grating. 2. That they had enacted an ordinance, which, if complied with, precludes the possibility of such an accident as that from which the plaintiff suffers. 3. That they are not liable for a violation of their ordinances. 4. That the executive duty of enforcing those ordinances, by inspection of the streets and reporting violations of them, is vested by law in another and independent body (the Metropolitan Police), who are not subject to their authority or control; and, 5. That the accident arose from the negligence of the occupants of the house in front of which this grating was located. There is nothing formidable in this array of objections. The defendants are vested by law with,the control of the streets and sidewalks of this city, and it has been held, frequently, that it is their duty to keep them in such condition that they may be safely traveled at all hours, their liability for injuries sustained depending, nevertheless, in some instances, either upon express notice of an existing danger, or proof of its existence for a period long enough to justify the presumption of notice. These rules are so familiar, that it is not considered necessary to cite the cases and laws by which they have been established. Possessing the control suggested, the making of vaults, and the use of vault gratings or covers, is also entirely under the control of the defendants, and they have, by their ordinances, determined by what permission, and in what manner, vaults shall be made, and the grating or covers to be used over the openings in the sidewalk communicating with them (see Revised Ordinances of 1845, chap. 18, p. 251). It will be seen, on examination of these ordinances, that no vault is to be built without permission, in writing, from the Croton Aqueduct Board; that the opening to it on the sidewalk must be within a certain distance from the outside of the curbstone of the sidewalk, or within twelve inches of the coping of the area in front of" the house to which the vault shall belong, under certain penalties [249] prescribed, violations of which involve no consequences except liability for the penalty (Brown v. The Buffalo & State Line R. R. Co. 22 N. Y. 191), and do not, therefore, relieve the defendants from liability for injuries resulting from such violations. The use of the power possessed by the defendants being exercised, and in a manner which is attended with danger, imposes upon them the highest obligation to secure the safety of the public. It may be said with propriety, although it is not necessary for the purposes of this appeal so to determine, that, by granting permission to make openings in the sidewalk, and to use gratings or covers, the defendants are principals, and the act chargeable upon them as such. They delegate a power by such permission, which is to be employed by another, with their authority—-facit per alAum, faoit per se. Without asserting this, however, to be a legal consequence of their permission, there is no doubt, as stated, that by permitting the street to be used for a hazardous purpose, they are required to exercise the greatest caution and vigilance. The evidence in this case shows conclusively that such caution and vigilance have not been employed. The grating which the owner of the house was permitted to use was not the best that could be procured, and it was not, in all respects, the best of its kind. It rested upon a brown stone bed, which was not as well adapted for the purpose as a blue stone, the former being softer and more liable to wear away—which was illustrated by the condition of the stone on which the grating in this case was laid. Of this, the defendants must be presumed to have notice. When the permission is given, the defendants must see that all the safeguards declared and known shall be adopted, and, as long as a thing dangerous in itself is employed, to see to it that it shall be so employed that no person may be injured. In using the thoroughfares of this city, the public are not called upon to examine ordinances, do police duty, or take the place of the employees of the defendants. They have the right to assume that they may safely traverse them at all hours, exercising only that degree of caution which every reasonable person is supposed to observe. They may not rush into danger with impuni [250] ty, or set at defiance the obligation to regard their own personal safety, upon an assumed infallibility of the defendants in reference to the street; but, where there is no apparent danger, they are justified in relying upon a safe enjoyment of the highway. There was no apparent danger to the plaintiff, and he was entirely free from negligence. It appears, therefore, in this case: 1. That the grating or cover of the vault opening was insecure, and had been for some time. 2. That a safer covering was in use. 3. That the plaintiff was injured while in the legal enjoy- - ment of the highway; and, i. That he was free from negligence. These facts are sufficient to create a liability on the part of the defendants. If the ordinances, as they say, when complied with, are sufficient to prevent such casualties as complained of here, why do they not enforce them ? We are not to stop here to inquire who is to report the violations of ordinances, inasmuch as that cannot in any way affect the plaintiff’s rights. If he had known of the defective covering on which he stepped, he would be without a remedy, and would have been guilty of negligence, not only in regard to his legal rights, but toward the community, if he failed to inform the authorities. The defendants must be held to the responsibility growing out of obstructions or excavations in the street, unless excused by want of express or constructive notice, notwithstanding their ordinances in reference to such obstructions or excavations. The public may rely upon their enforcement, and not seek the persons who violate them. The defendants occupy, except in cases already suggested, the relation of insurers against injuries arising from a proper use of the streets as such. If the metropolitan police are not, and cannot be, required to report-violations of law, then, as a co-ordinaté branch of the city government, it is as a department very defective. There is no proof of this fact, however. It cannot be regarded as a legal proposition, and it is not to be assumed that the police commissioners relieve the force from the discharge of such duties. The corporation attorney is the officer of the defendants upon [251] whom the duty devolves to. prosecute for violations of the ordinances; and the defendants are bound to see that the necessary force is employed to make his trust available, at least in reference to such violations as endanger the public safety. The right to pass ordinances, and the appointment of an officer to enforce them, carries with it the power to make those ordinances effectual; and if the police cannot be instructed and required to make examinations, and report to the proper person, then the defendants should have the necessary servants to accomplish the object named. I can discover no reason why this judgment should not be affirmed. Judgment affirmed.