Clapper v. Town of Waterford

• Decision Date: 01 March 1892
• Citation: 131 N.Y. 382,30 N.E. 240
• Parties: CLAPPER v. TOWN OF WATERFORD.
• Court: New York Court of Appeals Court of Appeals

131 N.Y. 382

30 N.E. 240

CLAPPER

v.TOWN OF WATERFORD.

Court of Appeals of New York.

March 1, 1892.

Appeal from supreme court, general term, third department.

Action by Elizabeth A. Clapper against the town of Waterford for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed.

I. C. Ormsbey,(J. W. Houghton, of counsel,) for appellant.

P. D. Niver, for respondent.

O'BRIEN, J.

The plaintiff recovered damages for an injury received by her from slipping into a hole in a cross-walk or foot-bridge in one of the public highways of the town, known as ‘Saratoga Avenue,’ on the 31st of July, 1889. This highway, running north and south, was 66 feet wide. It has curb lines and sidewalks on both sides. The space between the curb-stones is 40 feet. On each side of the rounded road-bed there is a gutter, extending from the traveled part of the road to the curb line, some 6 or 8 feet in width, which serves to carry off the water from the road. At the point where the accident happened, there were residences on both sides of the road, and the neighborhood was quite populous, and the highway was traversed by an electric street railway. Some 10 or 15 years before the accident, the residents and property owners on both sides of the road constructed sidewalks, and in connection therewith a stone cross-walk across the road-bed. This cross-walk was extended on both sides of the road, across the gutters, to the curb line by means of a plank bridge or walk about 4 feet wide, and leaving a space between the plank and the deepest part of the gutter of about 12 inches. On the evening of the accident the plaintiff got off a street-car at the cross-walk, and, desiring to go to her brother's house, a short distance further on the line of the street, and finding the road-bed muddy, she followed the cross-walk leading to the sidewalk on the side of the road, and, while crossing the plank portion of the cross-walk over the gutter, she stepped into a hole in the plank, and sprained her ankle. The property owners and residents built the side and cross walks under the authority of statutes then existing. Laws 1860, c. 61; Laws 1863, c. 93; Laws 1881, c. 233. The commissioners of highways had no actual notice of the defect in the walk, so far as appears by the evidence. The hole is described by the witnesses as oblong, running lengthwise between two planks. The largest estimate of any witness makes it from 4 to 5 inches wide, by 10 to 12 inches in length. It is difficult to discover from the proofs in the case any ground upon which the jury could have found that the town, or its officers, were guilty of any negligence in respect to this highway. It is admitted that the road-bed, which is the part of a country highway ordinarily required to be kept in a suitable and safe condition for the traveling public, was in good order, and, unless the commissioner was negligent in failing to discover so slight a defect in a plank-walk across a gutter on the side of the highway, built by the people who owned property on both sides of the road, there is no ground upon which the verdict in the plaintiff's favor can stand. But if it be assumed that there was some evidence in the case for the consideration of the jury, bearing upon the question of the negligence of the defendant in failing, through its proper officer, to discover the hole in this plank-walk across the gutter on the side of the road, and to repair the same, there were errors committed at the trial prejudicial to the defendant, and which necessitate a reversal of the judgment. By chapter 700 of the Laws of 1881 the towns of the state were made liable for damages to any person suffering the same by reason of defective highways or bridges in such town, in those cases only where the commissioner of highways was liable at the time of the passage of that act. The defendant is not liable in this case unless, upon the same facts, the commissioner of highways would have been liable prior to the passage of the statute. It was always a defense to an action for damages against a commissioner of highways for injuries sustained in consequenceof a defective highway to show that he was without the necessary funds to make the repairs, and without the power to raise such funds. Barker v. Loomis, 6 Hill, 463;People v. Board, 93 N. Y. 397;Hover v. Barnkhoof, 44 N. Y. 113;Hines v. City of Lockport, 50 N. Y. 236;Monk v. Town of New Utrecht, 104 N. Y. 572, 11 N. E. Rep. 268. The act of 1881 has not changed...