Corporan v. City of New York

• Decision Date: 15 March 1907
• Citation: 80 N.E. 660,188 N.Y. 131
• Parties: CORPORAN v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

188 N.Y. 131

80 N.E. 660

CORPORAN

v.CITY OF NEW YORK.

Court of Appeals of New York.

March 15, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Emma Corcoran, administratrix of Margaret Corcoran, deceased, against the city of New York. From a judgment of the Appellate Term (99 N. Y. Supp. 1136), affirming by a divided court a judgment of the Trial Court, dismissing the complaint, plaintiff appeals. Reversed, and new trial granted.

Shortly after midnight of October 6, 1904, an automobile containing plaintiff's intestate and eight other persons crashed through a fence which extended across the westerly end of Jerome avenue, in the city of New York, falling over a sheer declivity to a depth of between 20 and 30 feet just beyond the fence, and landing on the tracks of the New York Central Railroad Company, where the automobile and the party which had occupied it were run down by a passing train, and the plaintiff's intestate was killed. This action was brought against the city of New York to recover the damages occasioned by that death. The negligence charged in the complaint against the defendant is that the latter failed to properly light and guard the street at the point of this declivity, and these allegations are put in issue by the answer. At the close of the plaintiff's case the learned trial court dismissed the complaint upon the ground that no negligence had been established against the defendant, and the judgment entered upon that decision was affirmed at the Appellate Division, with two of the justices dissenting. Further facts appear in the opinion.

Cullen, C. J., and Haight and Vann, JJ., dissenting.Dudley R. Horton, for appellant.

William B. Ellison, Corp. Counsel (Theodore Connoly and Royal E. T. Riggs, of counsel), for respondent.

WERNER, J. (after stating the facts).

Jerome avenue is one of the public streets in the city of New York. Its general direction is north and south, but as it approaches the Harlem river from the north it turns westerly and ends abruptly at the New York Central Railroad Company's tracks which, at this point, border on the Harlem river at a level of from 20 to 30 feet below the surface of the adjacent streets. Prior to 1895 the old McComb's dam bridge formed a continuation of Jerome avenue and connected it with the island of Manhattan on the south side of the Harlem. At some time in that year the old bridge was removed, leaving Jerome avenue to terminate abruptly as above described, and some six or seven years before the trial of this action the defendant had erected across this abrupt end of Jerome avenue a picket fence about six feet high, which extended across the whole width of the street. This fence was close to the end of the declivity, and converted this part of the street into a cul-de-sac. Extending across a part of the street, at a point about four feet easterly from the fence in question, was what is known as a ‘guard rail,’ constructed of upright chestnut posts, six inches in diameter, connected at the top and about midway between the ground with two by four rails. After the old bridge had been taken away a new bridge was built across the Harlem river, with its easterly approach commencing near the intersection of Jerome avenue and 162d street, at a point about 1,500 feet easterly from the fence at the end of the cul-de-sac. This new approach forms a continuation of Jerome avenue, which now converges southerly on a curve and crosses the Harlem to the south of the cul-de-sac, while the clu-de-sac continues along the old lines of Jerome avenue, which are slightly to the right of and almost parallel with the new approach. The two branches of Jerome avenue thus described form what may be termed an oval, which extends to the Harlem river. At this point Jerome avenue is intersected on the northerly side by Ogden avenue and Sedgwick avenue. Ogden avenue runs generally north and south, and enters Jerome avenue about 350 feet from the picket fence. Its course is changed on the opposite side of Jerome avenue, where it connects with the approach to the new bridge, forming what is called the Ogden avenue approach. The direction of Sedgwick avenue is approximately east and west, and it enters Jerome avenue still nearer the fence; its curb line on the westerly or lower side being 240 feet therefrom and practically oppositethe Ogden avenue approach. From the intersection of these two avenues with Jerome avenue the latter continues, and already stated, along the old lines to the abrupt ending at the guard rail and picket fence. This was the physical situation at the time and place of the accident. On the night in question the plaintiff's intestate, with 10 others, had been at a resort on 110th street. They left there in two automobiles at between 9 and 10 o'clock in the evening and went to a roadhouse called ‘Woodward's,’ at 177th street and Jerome avenue. Two of the party left the latter place in one of the automobiles, and the other nine, including plaintiff's intestate, continued there, dancing and singing until about midnight, when they entered the remaining automobile. Seven of them got into the tonneau of the vehicle, and the front two seats were taken by the plaintiff's intestate and one Noyes, who operated the machine. The party proceeded along Jerome avenue towards the city, and, when they had reached the intersection of that avenue with the new bridge approach near 162d street, they held to the right or...