Delaware, L. & W. R. v. Madden

COXE, Circuit Judge. There is substantially no dispute as to the facts. No controversy arises as to the amount of the verdict. Contributory negligence is not asserted. The only question is whether the defendant is liable for the condition of the sidewalk which caused the injury. A brief statement of the facts is necessary. The plaintiff is a resident of Ithaca, New York. On September 21, 1914, he came from Ithaca to Cortland and about 11 o’clock that night he was walking westerly along the south side of Elm street east of the Delaware, Dackawanna & Western Railroad. As he passed the flagman’s shanty a. short distance from the eastern railroad track he wTas looking to the south to see if any trains were approaching and he stepped into a hole in the walk on the south side of Elm street a short distance from where the railroad tracks cross the street. This hole was from a foot to 18 inches deep. The planks were in a decayed condition. One of the witnesses describes the walk as he saw it in September, 1914. Die testified: “The length and width and depth of the hole remained about the same during that tíme. I just looked at the plank and took my toe and kicked it along, and I would call it what we call dozy; ® * * the plank was a sort of a dry rot.” In other words, the plank had decayed because it had been subjected for a long period of time, in summer and winter alike, to rain, wind and snow. “The whole plank appeared to be old, and the appearance of having been there a long tinte, and that it had become decayed from rain and snow and wind, the elements.” [ 1 ] There can be no doubt that there was a hole in the walk at the point in question about 18 inches long, 6 inches wide and from 12 to 18 inches deep. There cannot be the slightest question that this was a most dangerous obstruction, or pitfall, to be permitted in a city street and that the party responsible for its being there is liable to those who were injured because of it. The defendant’s tracks run at an oblique angle across Elm street and the sidewalk on the south side thereof is a thoroughfare which the public uses and has a right to use. That such an obstruction was a menace to life and limb and that repair was necessary must be conceded. That someone was responsible for such a condition cannot be controverted and when such party is discovered he must pay for the result of his negligence. Section 80 of the charter of the city of Cortland provides, inter alia, as follows: [810] “The board of public works sball have power to require sidewalks, curbs and gutters * * * to be relaid, reset, mended, or repaired by the owners, possessors or occupants of lands adjoining such curbs.” The law requires notice to be given and if the improvement or repair is not done within the time limited by the owners or occupants of adjacent land it will be done by the board of public works at the expense of such owner or occupant. The clause of the city charter chiefly relied on by the plaintiff is as follows: “The owner or occupant of lands fronting or abutting any street shall be liable for any injury or damages by reason of omission, failure or negligence to make, maintain or repair the sidewalk adjoining such lands or for a violation or nonobservance by him of a resolution or ordinance of the board of public works authorized by this section and shall not be relieved therefrom by the service' of the notice above specified.” The defendant insists that in order to make this section applicable to the present situation it is necessary to read into it a number of additional qualifying and explanatory provisions. It seems, however, that it covers the facts in the present case without amendment or interpretation. Let us apply the statute to the facts developed here making it personal to these litigants. It would then read — The Delaware, Lackawanna & Western Railroad Company, the owner of lands abutting on Elm street shall be liable for any injury or damage by reason of omission, failure or negligence to make, maintain or repair the sidewalk adjoining such lands. [2, 3] We see nothing startling or unconstitutional in such a construction. In the present case there was a dangerous hole made by decaying planks. The hole was wide enough and deep enough to cause a most distressing accident. In' the nighttime it might easily be passed unnoticed. In fact, this is what happened. The necessity for repairs was so obvious and the danger of leaving such a menace to life and limb unrepaired, that it is difficult to understand why it was permitted to remain a single day. The obligation to repair was clearly upon the defendant and it was surely unnecessary that the city’s council or its board of public works should be called together to decree that a new plank should be subslituted for a rotten plank on one of the city streets. The language of the charter is not as clear and concise as it might be but this must always be so under our present system where law-making is often in the hands of neophytes and where ill-considered amendments are continually being made. The section of the Cortland charter is, we think, sufficiently clear to warrant us in holding that an abutting owner shall be liable for injuries occasioned by a dangerous cavity in a traveled walk adjoining his lands. • [4] The Case of the City of Rochester, 123 N. Y. 405, 25 N. E. 937, 10 L. R. A. 393, 20 Am. St. Rep. 760, is relied on by the defendant but we do not consider it controlling for the reason that the plaintiff in that case slipped and fell upon the sidewalk and brought an action against the city and recovered a judgment which the city paid. The city then-brought action against the executors of the deceased abutting owner and the court held that they were not liable, it being the duty of [811] the city to keep the street free from ice and snow. The city alone was held liable to the public, the court holding that the statute did not impose any obligation on the abutting owner to those who used the walk. The law was for the benefit of the city to enable it to recover of the abutting owner if compelled to pay damages by reason of the dangerous condition of the walk. We are confronted with a different problem in the present case where the abutting owner is liable for damages caused by his failure to repair a perfectly obvious and dangerous defect in the walk. AVe are convinced that as between the city and the abutting owner the latter is primarily liable for the dangerous condition of the walk. In Mullins v. Siegel-Cooper Co., 183 N. Y 129, 75 N. E. 1112, a person injured because of the dangerous condition of a sidewalk in front of the defendant’s premises, made so by a contractor driving his wagons over the walk with the permission of the abutting owners, was permitted to recover. To the same effect are Willy v. Mulledy, 78 N. Y. 310, 34 Am. Rep. 536; Village of Carthage v. Frederick, 122 N. Y. 268, 25 N. E. 480, 10 L. R. A. 178, 19 Am. St. Rep. 490; Brookville Borough v. Arthurs, 152 Pa. 334, 25 Atl. 551. The law on the question here involved is not as explicit and uniform" as could be desired, but we think the law as charged by the District Judge tends to protect the lives and limbs of those who use the public streets, and it makes stxch an accident as here occurred almost impossible. It says to the abutting owners that they must see to it that no dangerous pitfalls will be permitted on. the walks immediately adjoining their property and that they will be liable if they permit such ■menaces to life and limb to continue. The judgment is affirmed with costs.