104 N.Y. 434, Hubbell v. City of Yonkers

• Citation: 104 N.Y. 434
• Party Name: FREDERICK E. HUBBELL, an infant by guardian, etc., Respondent, v. THE CITY OF YONKERS, Appellant.
• Case Date: March 01, 1887
• Court: New York Court of Appeals

Page 434

104 N.Y. 434

FREDERICK E. HUBBELL, an infant by guardian, etc., Respondent,

v.

THE CITY OF YONKERS, Appellant.

New York Court of Appeal

March 1, 1887

Argued January 27, 1887.

Page 435

COUNSEL

Joseph F. Daly for appellant. There was no proof in this case of negligence on the part of the defendant. (Moulton v. Town of Sandford, 51 Me. 127; Titus v. North Bridge, 97 Mass. 258; Horton v. Taunton, 97 id. 266; Kennedy v. Mayor, etc., 73 N.Y. 368; Mors v. Burlington, 80 Ia. 438; 46 Am. Rep. 82.) Even conceding that the fright of the horse had nothing to do with the accident, the defendant, as far as the carriageway was concerned, omitted no duty which made it guilty of negligence. (Perkins v. Fayette, 68 Me. 152; Dougan v. Champlain Trans. Co., 56 N.Y. 1; Cleveland v. N. J. Steamboat Co., 68 id. 306; Loftus v. Union Ferry Co., 84 id. 455; Ring v. City of Cohoes, 77 id. 83, 90.) The common council of the city of Yonkers, when it adopted the plans for the construction of this street, and determined that no railing was necessary at the place where the accident occurred, performed a judicial act, and for any error of judgment on the part of the common council, as to what the public safety required, the city of Yonkers is not liable. (Mills v. City of Brooklyn, 32 N.Y. 489; Hines v. Lockport, 50 id. 236; Urquhart v. City of Ogdensburgh, 91 id. 67; Lansing v. Tooling, 37 Mich. 152; 16 Alb. L. J. 164; City of Detroit v. Beekman, 34 Mich. 125; Cain v. City of Syracuse, 95 N.Y. 83.)

Page 436

Malcolm F. Keyes for respondent. The provisions of the charter requiring the city to compel or cause the making and repairing of railings at exposed places in the streets are, in legal effect, mandatory, though permissive in form, and made it the duty of the common council to erect, or cause to be erected, a railing along the embankment. (Laws of 1881, chap. 184, tit. 6, § 6, subd. 16; id. tit. 7., § § 1, 2, 3, 14; id. tit. 11, § 2; Hutson v. Mayor, etc., 9 N.Y. 193; 1 Kent, 467; 5 Cow. 188; 22 Barb 404; Hines v. City of Lockport, 50 N.Y. 236.) It is the duty of municipal corporations to protect exposed places in the street by suitable railings or guards. (Leyman v. Amherst, 107 Mass 339; Britton v. Cummington, id. 347; Bliss v. Deerfield, 13 Pick. 102; Hunt v. Pownal, 9 Vt. 411; Gillespie v. City of Newburgh, 54 N.Y. 468; Macauley v. Mayor, etc., 67 id. 602; Kennedy v. Mayor, etc., 73 id. 365.) The fact that the accident happened outside of the traveled roadway, and outside of the curb and gutter, does not relieve defendant of liability. (Hyatt v. Trustees of Rondout, 44 Barb. 385; Rice v. Montpelier, 19 Vt. 470; Kelsey v. Glover, 15 id. 708; Ang. on High. §§ 262, 295, 297.) A failure to provide safeguards is justly held to be negligence, and the town, village or city in default is liable in damages to one suffering injury from such negligence. (Conrad v. Village of Ithaca, 16 N.Y. 158; Storrs v. City of Utica, 17 id. 104; Hover v. Barkhoof, 44 id. 113; 2 Dillon, § § 778, 780, 788, 789.)

PECKHAM, J.

The plaintiff sustained an injury by falling over an...