Dougherty v. Trustees of Vill. of Horseheads

• Decision Date: 02 May 1899
• Citation: 159 N.Y. 154,53 N.E. 799
• Parties: DOUGHERTY v. TRUSTEES OF VILLAGE OF HORSEHEADS.
• Court: New York Court of Appeals Court of Appeals

159 N.Y. 154

53 N.E. 799

DOUGHERTY

v.TRUSTEES OF VILLAGE OF HORSEHEADS.

Court of Appeals of New York.

May 2, 1899.

Appeal from supreme court, appellate division, Third department.

Motion by Charles F. Dougherty against the trustees of the village of Horseheads. From a judgment of the appellate division affirming a judgment for plaintiff (39 N. Y. Supp. 447), defendant appeals. Reversed.

Martin, J., dissenting.

W. L. Dailey, for appellant.

Frederick C. Collin, for respondent.

VANN, J.

This action was brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. As the jury found for the plaintiff, they are presumed to have found all the facts in his favor that have any reasonable support in the evidence. Those facts, so far as they are material to the question discussed, are substantially as follows: Main street, in the village of Horseheads, over 60 feet in width, runs substantially north and south, and at the point where the accident in question happened there is a driveway leading from the west line of the street a distance of about 20 feet, to a barn. The west line of the street is 10 feet west of the west line of the driveway of the street, which is 43 feet wide. It is 1 foot from the west exterior line of the street to the sidewalk, which is 6 feet wide; and adjoining the sidewalk on the east is a grass plot 3 feet wide, in which there is a row of trees. There is no curbing or gutter between this grass plot and the driveway of the street, but there is a slight depression in the place where a gutter would naturally be, through which the surface water flows to the south. The most northerly tree standing in the grass plot is about 3 feet southerly from the driveway leading to the barn. East or northeast of that tree, and 2 or 3 feet therefrom, was an egg-shaped stone, about 24 inches long north and south, 18 inches wide east and west, and from a foot to 18 inches high, described by some of the witnesses as a large boulder about the size of a bushel basket. It was placed there in 1885, upon the suggestion of the owner of the barn, under the direction of the street commissioner of the willage. The object of the stone was to protect the grass plot and the tree from injury by persons driving upon the street or to the barn. At the time of the accident the stone was covered with snow, which had recently fallen to the depth of about six inches. The plaintiff was in a cutter with a single horse attached, driven by and belonging to one Gilmore. As they were coming out from the barn to the street in the daytime, upon a slow trot, the right runner of the cutter struck the stone, the cutter was tipped over, throwing the passengers out, and inflicting somewhat severe injuries upon the plaintiff. The appellate division, in affirming the judgment entered on the verdict, stated that the court was not ‘unanimous on the question as to whether the facts proved were sufficient to support a finding of negligence on the part of the defendant.’

While it is the duty of a municipal corporation to use reasonable care to keep its streets in a safe condition to drive upon, it has the right to devote the sides of the streets to other useful public purposes, provided it leaves an unobstructed driveway of ample width for the passage of teams. It may construct sidewalks of a higher grade and gutters of a lower grade than the driveway, place curbing on the line of the gutters, erect hydrants, and authorize the erection of hitching posts and stepping stones, as well as poles to support the wires of telegraph and telephone lines. It may lay out grass plots on the sides of the streets, set out trees therein, and protect both grass and trees from injury by fences or other reasonable means. It may thus to a reasonable extent, and for a useful public purpose, narrow the driveway, and exclude teams altogether from the sides of the street. It may, under reasonable regulations and conditions, permit private driveways to be built from the lands of abutting owners to the driveway of the street, and, when they pass near trees or grass plots, protect them from trespass by those driving in or out. For this purpose they may bend the line of curbing in towards the sidewalk, so that it will limit the private driveway, and prevent teams from passing over the grass or running against the trees. If a person drives against the curb either on the side of the street or on the side of the driveway, it is his own fault or misfortune, for one object of the curbing is to prevent driving beyond its lines. In the case before us a large stone took the place of curbing, in order to keep people from driving over the grass and against the tree. While it was an obstruction, it was a lawful obstruction, the same as a fence, hydrant, or telegraph pole. It was properly placed there for the purpose of obstructing travelers who might otherwise drive over the grass plot, and injure the trees. It separated the driveways from the lawn, so as to confine teams to the part devoted to travel; and when Mr. Gilmore drove against it the legal effect was the same as if he had driven against a fence post placed there for the same purpose. Both driveways were of ample width, the grade was substantially level, and there was no difficulty in reaching the traveled portion of the street without running against this stone, which marked the passageway for teams, and shielded objects designed to make the street attractive. Grass plots and shade trees on the sides of streets serve a useful public purpose, consistent with the object for which streets are made, because they add to the beauty of the scene, and the trees furnish shade for pedestrians...