Pettengill v. City of Yonkers

• Citation: 22 N.E. 1095,116 N.Y. 558
• Parties: PETTENGILL v. CITY OF YONKERS.
• Decision Date: 26 November 1889
• Court: New York Court of Appeals

116 N.Y. 558

22 N.E. 1095

PETTENGILL

v.CITY OF YONKERS.¹

Court of Appeals of New York, Second Division.

Nov. 26, 1889.

Appeal from supreme court, general term, second department.

Action by Frances W. Pettengill against the city of Yonkers for injuries sustained from an obstruction in one of defendant's streets. Judgment for plaintiff, and defendant appeals.

Joseph F. Daily, for appellant.

James M. Hunt, for respondent.

BROWN, J.

The plaintiff recovered a judgment at the circuit for $10,000 for personal injuries received by her in consequence of an obstruction in Yonkers avenue, one of the public streets in the city of Yonkers. The obstruction consisted of a heap of dirt and rocks thrown out from a trench dug for the purpose of laying water-pipes. The night of the accident was very dark and misty. The plaintiff was riding with her husband in a wagon drawn by one horse, going east, and, coming in contact with the heap of dirt and stones, the wagon was overturned and the plaintiff injured. The evidence as to the existence of lights at or near the place of the accident was conflicting, but the jury were authorized to find, and on this appeal we must assume they did find, the facts in conformity with the plaintiff's proof. Upon that assumption there was no light within 100 feet of the place of the accident, no guard or barrier around the heap of dirt or the open trench, and nothing to warn the plaintiff or her husband of danger. We are of the opinion that the case, in all its aspects, was one for the consideration of the jury.

The point that proof was admitted which was at variance with the cause of action alleged in the complaint is not well taken. The cause of action was negligence on the part of the defendant in permitting one of the public streets of the city to be in a dangerous condition. The facts which constituted the negligence were alleged to be the excavation of a dangerous hole or trench, and throwing up a dangerous embankment therefrom in the street, and in suffering the trench and embankment to be without protection or notice to travelers on the night of the accident. These facts were denied by the answer, and under the issue thus made the plaintiff was entitled to recover by showing to the satisfaction of the jury either a dangerous obstruction created by the city and left unguarded, or an obstruction created by some third person, and left unguarded by the city after notice of its existence. Upon the latter branch of the case all the evidence relating to the condition of the street, and the absence of lights prior to the accident, was admissible, as it tended to show a condition of affairs from which the jury could infer that the city had, or ought to have had, knowledge of the dangerous condition of the street.

The evidence as to the existence of lights at the trench after the accident was confined to the night in question, and was admissible to contradict the testimony of the contractors that a light was there. It may not have been strictly in rebuttal, but its admission was discretionary with the trial court.

Even if the appellant's contention that it was not responsible for the negligent acts of the water board was sound, that would not relieve it from liability in this case. The dangerous condition of the street had existed for two months or more before the accident, and the defendant must be deemed to have had knowledge of it. Its duty was to keep the streets in a safe condition for public travel, and it was bound to exercise reasonable diligence to accomplish that end, and the rule is now well established to be applicable, whether the act or omission complained of and causing the injury is that of the municipal corporation or some third party. Nelson v. Village of Canisteo, 100 N. Y. 89, 2 N. E. Rep. 473. Where public or private improvements are being made in a street, it is the duty of the city to guard and protect them so as to protect travelers on the street from...