Donnelly v. City of Rochester
| Decision Date | 26 March 1901 |
| Citation | 166 N.Y. 315,59 N.E. 989 |
| Parties | DONNELLY v. CITY OF ROCHESTER. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, appellate division, Fourth department.
Action by Patrick Donnelly, as administrator of Patrick H. Donnelly, deceased, against the city of Rochester. From a judgment of the appellate division (58 N. Y. Supp. 1140) overruling plaintiff's exceptions ordered to be heard in the first instance by such division, denying a motion for a new trial, and directing judgment for defendant, plaintiff appeals. Reversed.
George H. Harris and John S. Keenan, for appellant.
Porter M. French, for respondent.
This action is brought to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the negligence of the defendant. In front of the Powers building, on Main street, the principal business street in the city of Rochester, there was an area way which extended into the street six feet four inches, and was twelve feet three inches below the grade of the sidewalk. The descent from the sidewalk to the level of the area was vertical. The excavation was at the time of the accident, the subject of this suit, guarded by a railing two feet and a half high, erected along the edge of the sidewalk. On the evening of January 29, 1897, the plaintiff's intestate, who had been standing on the sidewalk near the railing, started to walk across it to take an approaching car. He slipped on some snow which had recently fallen, and was precipitated over the railing into the area way. The area way and railing had existed for a number of years in the same condition as at the time of the accident. On the trial the plaintiff put in evidence an ordinance of the city of Rochester which prescribed that celler ways or openings, platforms, or approaches to any building should have a substantial rail on the sides thereof at least three and a half feet high. At the conclusion of the evidence for the plaintiff the complaint was dismissed, and the judgment entered on such dismissal has been affirmed by the appellate division of the supreme court.
This action is not brought to impose liability upon the city for failing to enforce its ordinances, but for default in its own primary duty to maintain its streets reasonably safe and secure for travelers thereon. Nor, on the other hand, do we consider the area way to have been necessarily an unlawful encroachment upon the highway, and a nuisance per se. Subdivision 7 of section 6 of the amended charter of the city of Rochester (chapter 561, Laws 1890) authorizes the common council ‘to regulate and prevent the use and cumbering of streets, avenues,’ etc. While the right to excavate area ways or construct stoops in the highway is not an incident to the ownership of the adjacent land, a long usage of the highway for such purposes justifies the inference that the municipal authorities have consented to the presence of such structures...
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