Cohen v. City of New York

Decision Date13 February 1912
Citation204 N.Y. 424,97 N.E. 866
PartiesCOHEN v. CITY OF NEW YORK.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Celia Cohen against the City of New York. From a judgment of the Appellate Division (144 App. Div. 678,129 N. Y. Supp. 232) reversing a judgment dismissing the complaint and ordering a new trial, defendant appeals. Reversed.Archibald R. Watson, Corp. Counsel (James D. Bell, of counsel), for appellant.

Abraham C. Cohen, for respondent.

HISCOCK, J.

While plaintiff was riding in a carriage at about half past 12 in the afternoon of October 9, 1903, over one of the roads in Prospect Park in the borough of Brooklyn, the carriage ran into a gully at the side of the road and was tipped over, and she was injured, and she has brought this action on the theory that the defendant was guilty of negligence in respect to said defect.

Commencing on the morning of October 8th and continuing without interruption from that time until after the accident, there was a rainfall of very unusual extent in the city of Brooklyn. The result of this, amongst other things, was to so raise the water in one of the lakes in the park system that, notwithstanding the efforts of employés to prevent it, the water overflowed and, passing some distance, spread over the road at the point of accident and washed out a gully several inches in depth. One of the plaintiff's witnesses was a policeman stationed near the place of accident; and, while his evidence was variable and unsatisfactory, the jury probably would have had the right to say that he discovered the defect in the roadway at about half past 8 in the morning of the day of the accident. He thereafter telephoned to his police station, about a mile away, some message, the purport of which is not given, except that it is assumed that it related in some way to the conditions which have been detailed. There is nothing in the record to indicate whether the locality in question was a central one, or whether the roadway where plaintiff was traveling at that time was much used or not.

[1] The question, of course, under these circumstances is whether a jury would have had the right to say that the defendant was guilty of negligence because it did not, by barriers or in some other manner, guard the defective highway; for it must be conceded that it was impossible to repair the road until the waters receded at some time after the accident. I am of the opinion that it would not have been permissible to allow the jury to say this, and that therefore the trial judge was correct in his disposition of the case.

[2] It will be assumed, for the appellant's counsel seems to so assume, that the policeman was an agent of the city for the purpose of receiving notice of the condition of the highway, and that it was his duty to communicate his knowledge to his superiors, in order that it might be passed along to those officials who were charged with the duty of repairing or guarding against the defect. The rule in this case, where the defect arose without fault on the part of the city, is that it would not be charged with negligence until lapse of a reasonable time in which to communicate knowledge and notice of the defect, and of a reasonable time after such notice and knowledge within which to repair or guard against the same. Farley v. Mayor, etc ., of New York, 152 N. Y. 222, 226,46 N. E. 506,57 Am. St. Rep . 511;Sprague v. City of Rochester, 159 N. Y. 20, 26,53 N. E. 697.

[3] Many times the question whether reasonable diligence has been exercised is one of fact for the jury; but at others, when there is no dispute of fact, the question is one of law. Hedges v. Hudson River R. R. Co., 49 N. Y. 223;Wright v. Bank of the Metropolis, 110 N. Y. 237, 249,18 N. E. 79, 1 L. R. A. 289, 6 Am. St. Rep. 356. And in determining how speedily a municipality should be required to act in such a case as this to avert accidents a limit must some time be reached, where the period between discovery of the defect and the accident is so short that a jury should not be allowed to say, as a question of fact, that due diligence has been lacking. I think that the present one is such a case, and that the defendant should not be held liable because it failed within about four hours to remedy a defect, not extraordinarily dangerous, caused by a storm of almost unprecedented severity in a locality not appearing to have been either central or much traveled at that time. It must be assumed that after such a rainfall as this was there were unusual demands on the city of many kinds and in many localities .

While no cases have been cited involving facts similar to those here presented, there are those which in a general way sustain our view.

Rehberg v. Mayor, etc., of New York, 91 N. Y. 137, 144,43 Am. Rep. 657, was an action to recover damages for injuries sustained by the fall of some bricks which had been piled in the street. The accident occurred about noon on May 5th. The pile was completed May 3d, and was commenced on or before April 29th, and, as the jury would have been warranted in finding, had reached the safety limit as early as...

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14 cases
  • Lewis v. Kansas City
    • United States
    • Kansas Court of Appeals
    • June 13, 1938
    ... ... 584; ... Canfield v. Newport (Ky.), 73 S.W. 788; Leary v ... Newburyport, 216 Mass. 225; Butler v. Oxford, ... 69 Miss. 618; Cohen v. New York, 204 N.Y. 424, 97 ... N.E. 866; Pemberton v. Albany, 188 N.Y.S. 245; ... Ferguson v. Waverly, 112 N.Y.S. 891; McFeeters ... v ... ...
  • Lewis v. Kansas City, Missouri
    • United States
    • Missouri Court of Appeals
    • June 13, 1938
    ...92 S.W. 584; Canfield v. Newport (Ky.), 73 S.W. 788; Leary v. Newburyport, 216 Mass. 225; Butler v. Oxford, 69 Miss. 618; Cohen v. New York, 204 N.Y. 424, 97 N.E. 866; Pemberton v. Albany, 188 N.Y.S. 245; Ferguson v. Waverly, 112 N.Y.S. 891; McFeeters v. New York, 92 N.Y.S. 79; Mosier v. St......
  • Nimmo v. Perkinson Bros. Const. Co.
    • United States
    • Missouri Supreme Court
    • April 17, 1935
    ... ... respondent Perkinson Bros. Const. Co ...          Charles ... M. Hay, City Counselor, and Oliver Senti and Louis A ... McKeown, Associate City Counselors, all of St. Louis, ... timely notice of the existence of the defect. Cohen v ... New York, 204 N.Y. 424, 97 N.E. 866, 39 L. R. A. (N. S.) ... 985. But in order that the ... ...
  • Nimmo v. Perkinson Bros. Const. Co.
    • United States
    • Missouri Supreme Court
    • April 17, 1935
    ...as a matter of law that the city cannot be charged with timely notice of the existence of the defect. Cohen v. New York, 204 N. Y. 424, 97 N. E. 866, 39 L. R. A. (N. S.) 985. But in order that the court may be warranted in treating the issue of timely notice to the city as a matter of law, ......
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