Babbage v. Powers

• Decision Date: 08 December 1891
• Parties: BABBAGE v. POWERS.
• Court: New York Court of Appeals Court of Appeals

130 N.Y. 281

29 N.E. 132

BABBAGE

v.POWERS.

Court of Appeals of New York, Second Division.

Dec. 8, 1891.

Appeal from supreme court, general term, fifth department. Affirmed.

Action by Edwin W. Babbage against Daniel W. Powers to recover damages for personal injuries sustained by plaintiff by reason of the sidewalk in front of defendant's premises being in an unsafe condition. The court directed a nonsuit, which was affirmed by the general term, and judgment ordered for defendant. Plaintiff appeals.

The other facts fully appear in the following statement by VANN, J.:

Action to recover damages for a personal injury to the plaintiff, caused, as alleged, by a nuisance maintained by the defendant in a public street. The complaint alleged that on the 7th of November, 1885, the defendant, being the owner, and, through his tenant, in possession, of certain premises situate on State street in the city of Rochester, ‘without authority of law or permission from the municipal authorities of said city’ maintained and continued under the sidewalk immediately in front of said premises ‘a certain vault excavated under said sidewalk, * * * covered only by the stone flagging used by the public for passing and repassing;’ that said stone flagging ‘was insufficient and inadequate in strength, through deficiency in quality or thickness, or by reason of some other defect to the plaintiff unknown, to sustain the ordinary travel of the public;’ that by reason of such insufficiency and by the sudden breaking of one of the flag-stones upon which the plaintiff was standing, he fell into the vault, and sustained serious injuries. The defendant, by his answer, denied certain allegations of the complaint, admitted that he owned the premises therein mentioned, but alleged that he did not own to the center of the street, nor beyond its outer line. He further alleged that said excavation was made, and the flagging over the same was laid, with the consent of the proper authorities, before he became the owner of the building; that the area and flagging were well and sufficiently made and maintained; that he had no knowledge or notice of any imperfection therein, and that the accident happened without any negligence or default on his part. Upon the trial it appeared that the plaintiff was injured in front of a building known as the ‘Ashley Block,’ consisting of three stores, erected in 1876. A vault, 10 or 12 feet deep, excavated at the same time in front of each store, was walled up on three sides in a substantial manner, and connected on the fourth by an archway opening into the cellar of the store. Each vault was covered with flag-stones, supported by solid iron girders running lengthwise of the sidewalk and resting on the walls. In the sidewalk were three openings, closed by iron doors, one in front of each storce, for the purpose of raising and lowering goods. The sidewalk was ten or twelve feet wide, with three rows of flag-stones. After the covered area was thus constureted, and in 1883 or 1884, the defendant purchased said block, and has owned it ever since. At the date of the purchase the store in question was rented to one Harris, who thereupon attorned to the defendant, and he has since occupied the store under renewals of the lease. November 7, 1885, the plaintiff, a man weighing 235 pounds, was walking with a friend in front of said store, and, meeting some ladies, turned towards the west, while his friend turned to the east, to allow them to pass. In thus turning out the plaintiff stepped on a flag-stone next to the curb, and thereupon fell into the vault underneath, the stone, in two pieces, one a little longer than the other, falling with him; and he was seriously injured. Said stone was from two to two and one-half feet wide by four or five feet long and four or five inches thick. It did not appear when or how it was broken, nor whether it was defective in any respect, nor was the cause of the accident shown, except as thus stated. The plaintiff, who had an office and lodging-rooms next door to the Ashley block, and had for years passed over the walk, testified that at the time of the accident it ‘was apparently just as he had always seen it.’ It did not appear expressly that the defendant had ever seen said block, or that he knew or had heard of the existence of said excavation. The evidence from which it is claimed that notice of its existence should be inferred is the purchase of the block by him, the receipt of rent therefor through his clerk, the renewal of the Harris lease by him in person, and his presence on one occasion in the city of Rochester, where a witness met him ‘as he was coming out of his bank.’ It was admitted that ‘no evidence was given of any negligence on the part of the defendant, or of his grantor, in constructing or maintaining the flagging which gave way, any further than such negligence is inferable from the accident itself.’

Theodore Bacon, for appellant.

Albert H. Harris, for respondent.

VANN, J., ( after stating the facts.)

The plaintiff does not claim that the defendant was negligent, but seeks to make him liable as a trespasser, upon the ground that the covered excavation in the steet had never been authorized or consented to by the municipal authorities. The law holds those who impair the safety of a public street to a strict liability. Thus in Congreve v. Smith, 18 N. Y. 79, it was said that ‘persons who, without special authority, make or continue a covered excavation in a public street or highway for a private purpose, should be responsible for all injuries to individuals resulting from the street or highway being thereby less safe for its appropriate use. * * * The general doctrine is that the public are entitled to the street or highway in the condition in which they placed it; and whoever, without special authority, materially obstructs it, or renders its use hazardous by doing anything upon, above, or below the suriace, is guilty of a nuisance. * * * No question of negligence can arise, the act being wrongful. * * * There can be no difference in regard to the nature of the act or the rule of liability, whether the fee of the land within the limits of the easement is in a municipal corporation, or in him by whom the act complained of was done.’ In another case, arising out of the same accident, it was held that, even if the stone covering the excavation was broken, after it was laid, by the wrongful act of others, the defendants would still be liable, because they were bound at their peril to keep the area covered in such a manner that it would be as safe as if it had not been built. Congreve v. Morgan, Id. 84. These cases have been followed and made the basis of judgment in many others. Creed v. Hartman, 29 N. Y. 591;Irvine v. Wood, 51 N. Y. 224; Whalen v. Gloucester, 4 Hun, 24; Anderson v. Dickie, 26 How. Pr. 105; Wendell v. Mayor, 39 Barb. 329, *43 N. Y. 261. Although called to the attention of the court, they seem to have been disregarded in McCarthy v. City of Syracuse, 46 N. Y. 194, 199, where it was said: ‘The excavation by the plaintiffs of the area under the sidewalk was not unlawful. They owned to the center of the strect, subject to the right of way of the public over the surface. For any interference with this right of way the plaintiffs would have been responsible, but so long as they did no injury to the street they were at liberty to use the space under it, as they might any other part of their property.’ Assuming, however, the rule to be as stated in the Congreve Cases, supra, when the excavation is made without authority, (Clifford v. Dam, 81 N. Y. 52, 56,) it is clear that when it is made with the consent of the proper municipal officers the rule of liability relaxes its severity, and rests upon the ordinary principles governing actions of negligence. The person receiving the license is held to impliedly agree to perform the act permitted with due care for the safety of the public, and is made liable for any violation of duty in this regard. Village of Port Jervis v. Bank, 96 N. Y. 550, 556;Clifford v. Dam, 81 N. Y. 52;Dickinson v. Mayor, etc., 92 N. Y. 584, 587;Village of Seneca Falls v. Zalinski, 8 Hun, 571, 574; Newton v. Ellis, 85 E. C. L. 123. When conditions, whether express or implied, are annexed to the license, substantial compliance therewith is essential to the protection of the licensee; but consent and compliance relieve the owner from the imputation of trespassing in doing the act consented to, and place him in the position of one liable for negligence only. Wolf v. Kilpatrick, 101 N. Y. 146, 4 N. E. Rep. 188; Nolan v. King, 97 N. Y. 565; Elliott, Roads & S. p. 541.

It did not appear on the trial of this action that express authority had been given by the city of Rochester, or in its behalf, either to the defendant or his grantor, to construct or maintain the covered area in question. On the contrary, a witness called by the plaintiff testified that during and prior to the year 18...