Hubbell v. City of Yonkers

• Decision Date: 01 March 1887
• Parties: HUBBELL, by Guardian, v. CITY OF YONKERS.
• Court: New York Court of Appeals Court of Appeals

104 N.Y. 434

10 N.E. 858

HUBBELL, by Guardian,

v.CITY OF YONKERS.¹

Court of Appeals of New York.

March 1, 1887.

Joseph F. Daly, for appellant.

Malcolm F. Keyes, for respondent.

PECKHAM, J.

The plaintiff sustained an injury by falling over an embankment while out riding in the city of Yonkers, and recovered damages in the trial court against the city for its negligence in the treatment of the street or highway of the city where the accident occurred. There is substantially no dispute about the facts upon which the defendant's liability is based, and briefly they are as follows: Linden street is a street in the city, running north and south, the road-bed in which was at the time in question macadamized along its entire width of 30 feet, and was in good condition. Sidewalkswere placed on each side of the road-bed, ten feet wide, and separated from it by a curb-stone eight inches high. On the west side of the west sidewalk there was an embankment at one point of the street of about 12 feet deep, running some number of feet along the sidewalk, and not guarded by any fence, wall, or other obstruction. It had been in this condition for 10 or more years, or ever since the laying out and opening of the street, and, so far as appears in the evidence, the accident in question was the first that had ever happened of such a nature. The accident happened on the twenty-sixth of May, 1883, about 6 o'clock P. M., and while it was day-light. The way in which it occurred may be told in the language of the plaintiff: ‘On the day of the accident I was going up the street, and met my cousins, who were getting ready to take a drive; and, as they were going down to the village, I thought I would ride rather than walk. They drove south on Waverly street to Park Hill avenue, then up the hill to Linden street, and when we got along Linden street there was a bicycle came along, and the horse became frightened at it, and commenced to shy, and, in trying to pull him awayfrom there, it pulled his head so that the blinds hid the embakment or stone wall, and in so doing he stepped off one foot; and the two young men were on the opposite side from the wall, and they had a chance to get out; but I had no chance, and I went over; and that was the last I remember until,’ etc. They were going north, and consequently had this embankment on their left.

Another witness for the plaintiff makes it, perhaps, a little plainer. He said: ‘I met a bicycle. I was driving, and my horse commenced to shy off, and I tried to pull him on the right side of the street; but in spite of me he crowded off to the left. * * * The other young fellow that was in the wagon with me grabbed hold of the lines and helped me to pull; but we could not pull him to the right side. In spite of us he ran off the bank. He did not run any considerable distance. He just shied right out, and went off the bank. It was all very sudden. It was very quick; it could not be over ten seconds. I was in the middle of the wagon, Mr. Hubbell on the left side, [west side,] and Brodt on the east. Brodt jumped out as we went over the curb, and I jumped out as the horse jumped off the walk. Hubbell tried to jump out, but did not have time. Horse, wagon, and Hubbell all went over the embankment together.’ In regard to the horse, the last witness said: ‘I have always driven the horse. He belonged to me. I met bicycles before, and he never minded them. The bicycle came upon us suddenly. I saw it not very far ahead. * * * I did not think the horse would run out at all, and had no reason to believe that the horse would be frightened at it. Linden street is much traveled, and has been for these years as far as I know.’

Upon this evidence there can be no valid claim of any negligence on the part of the plaintiff, who was a young man of 20 years, nor upon the part of the driver of the wagon. The only issue in the case arises as to the defendant's negligence. The city is not an insurer of the safety of persons traveling its streets; nor is it bound to furnish an absolutely safe and perfect highway under all circumstances. It is bound to exercise active vigilance to wards keeping its streets in proper repair; and still a street may be out of repair, and no liability exist against the city therefor; depending upon the question whether the city had failed to exercise that active vigilance which it was its duty to do. Here was a roadway in first-rate condition for its entire width, (thirty feet) and bounded on each side by a curb eight inches in height, and then separated from this western embankment by ten feet more...