135 N.Y. 96, Wilson v. City of Troy

Citation:135 N.Y. 96
Party Name:WALTER V. WILSON, Respondent, v. THE CITY OF TROY, Appellant.
Case Date:October 04, 1892
Court:New York Court of Appeals

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135 N.Y. 96

WALTER V. WILSON, Respondent,


THE CITY OF TROY, Appellant.

New York Court of Appeal

October 4, 1892

Argued May 25, 1892.

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William J. Roche for appellant. The charge of the court in effect, that this work was being done under the direction of the city by its officers, and that no other notice of the condition of this street was required to hold the city liable for defects therein arising through the doing of the work, was not correct. (Laws of 1832, chap. 51, § 6; Laws of 1855, chap. 58; Laws of 1880, chap. 30, § 6.) The court erred in instructing the jury that in awarding damages the outside limit was the sum of $3, 000, 'and the interest on that sum from the time of the happening of the injury.' (Fitch v. Livingston, 4 Sandf. 492; Walrath v. Redfield, 18 N.Y. 457; Mygatt v. Wilson, 45 id. 306; McCollum v. Seward, 62 id. 316; Mercer v. Vose, 67 id. 56; Black v. C., etc., Co., 45 Barb. 245; Winch v. M. B. I. Co., 86 N.Y. 618; McMaster v. State, 108 id. 542; Reiss v. N.Y. S. Co., 35 N.Y. S. R. 86; Parrott v. K. I. Co., 46 N.Y. 361; Mansfield v. N.Y. C. & H. R. R. R. Co., 114 id. 331; Sayre v. State, 123 id. 291.)

Charles E. Patterson for respondent. The liability of the defendant for the injury in question was clearly and fully established. (Pettingill v. City of Yonkers, 116 N.Y. 558; Ehrgott v. Mayor, etc., 96 id. 265; Walsh v. Mayor, etc., 107 id. 220; Barnes v. District of Columbia, 91 U.S. 540; Brusso v. City of Buffalo, 90 N.Y. 679; Turner v. City of Newburgh, 109 id. 301; Nelson v. Vil. of Canisteo, 100 id. 89; Russell v. Vil. of Canastota, 98 id. 496.) Error was not committed in including interest in the amount of the verdict given by the jury. (Walrath v. Redfield, 18 N.Y. 457-462; H. Ins. Co. v. P. R. R. Co., 11 Hun, 182-188; Mairs v. M. R. E. Assn., 89 N.Y. 498; Duryea v. Mayor, etc., 96 id. 477-499; Moore v. N.Y. E. R. Co., 126 id. 671.) Inasmuch as the amount of the verdict as modified by the

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General Term is less than the uncontradicted evidence shows the plaintiff was entitled to recover, if entitled to recover at all, the judgment should not be set aside because of any errors in the method adopted by the jury to arrive at the result actually reached. (Minick v. City of Troy, 83 N.Y. 514.Field v. Field, 77 id. 294.)


The record in this case presents two questions. First, whether the finding of the jury that the damage was the result of the defendant's negligence is sustained by any evidence, and secondly, whether interest could legally be allowed by the jury in estimating the amount of the damages. On the night of the 13th of November, 1879, a valuable horse belonging to one Learned, plaintiff's assignor, while being driven through South street, in the city of Troy, fell into an open ditch or unguarded excavation, made during that day, and was permanently injured. There is little, if any controversy, with respect to the value of the horse, the extent of the injury or the amount of damages. The night was dark and it is not denied that there was evidence for the jury sufficient to sustain a finding of negligence on the part of someone by reason of the failure to protect a place of danger, in a public street, by proper guards and lights. It was not shown that the city had any actual notice of the existence of the excavation, if made by private parties without its permission, and a sufficient period had not elapsed between the time of opening it and the accident, to render the city liable on the ground of implied notice. The excavation was made for the purpose of conducting the water from the principal main in the street, through lateral pipes, into a private house. The owner of the house employed a firm of plumbers to do the work, which included the digging of the trench, as well as laying and connecting the lateral pipes with the main in the street. The firm applied to the superintendent of the water works for men to open the trench in the street, and that officer directed laborers in the employ of the city to do so. The opening in the street was made by them and they were paid for the work

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by the city, the plumbers refunding to it the sum so paid. The question is whether the men who dug the ditch were under the control and direction of the defendant, or subject to the orders of the plumbers engaged in performing a piece of work for the owner of the house. The system of water works in Troy is the property of the municipality and is under the management and control of a board of water commissioners, which may be regarded as a department of the city government. The commissioners are by law required to nominate, and the common...

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