Hughes v. City of Auburn
| Decision Date | 28 November 1899 |
| Parties | MARGARET HUGHES, as Administratrix of ELLEN HUGHES, Deceased, Respondent v. THE CITY OF AUBURN, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Argued October 23, 1899. [Copyrighted Material Omitted] [Copyrighted Material Omitted]
L. A Pierce for appellant. The trial court committed no error in directing a verdict for the defendant at the close of the evidence, and the Appellate Division erred in granting a new trial herein. (Searing v. Vil. of Saratoga Springs, 39 Hun, 307; McCaffrey v. City of Albany, 11 Hun, 613; Matter of Rhinelander, 68 N.Y. 105; Kosmak v. Mayor, etc., 53 Hun, 329; 117 N.Y. 361; Jones on Neg. § 155; Seifert v. City of Brooklyn, 101 N.Y. 136; Hardy v. City of Brooklyn, 90 N.Y. 435; R. W. L. Co. v. City of Rochester, 3 N.Y. 463; Byrnes v. City of Cohoes, 67 N.Y. 205; Munk v. City of Watertown, 67 Hun, 261; Noonan v. City of Albany, 79 N.Y. 470.)
Frank C. Cushing for respondent. The defendant or its authorized official representatives were guilty of gross and culpable negligence in the matters complained of in reference to the premises, which were the home of the intestate, by reason of which her home was made unwholesome and dangerous to human life. (Seifert v. City of Brooklyn, 101 N.Y. 136; R. W. L. Co. v. City of Rochester, 3 N.Y. 463; Byrnes v. City of Cohoes, 67 N.Y. 204; Hardy v. City of Brooklyn, 90 N.Y. 435.) It is no defense to the charge of negligence on the part of the defendant to say that the old stone drain ran through private property, which had not been appropriated by the city by purchase or condemnation proceedings so as to give it the right to enter and repair, so long as the city continued to use it as a conduit for the sewage gathered by the other sewers referred to, especially after notice that it was insufficient and unsafe as such conduit, and that such use of it was productive of injury to private persons. (Thomas v. Henges, 131 N.Y. 453; Seifert v. City of Brooklyn, 101 N.Y. 136; Hardy v. City of Brooklyn, 90 N.Y. 435; Noonan v. City of Albany, 79 N.Y. 470; Munk v. City of Watertown, 67 Hun, 261; Dillon on Mun. Corp. § 1046.) The question as to whether the intestate was free from contributory negligence was a question for the jury under the facts and circumstances of this case. (Spaulding v. Jarvis, 32 Hun, 621; Munroe v. T. A. R. R. Co., 18 J. & S. 114; Greany v. L. I. R. R. Co., 18 Wkly. Dig. 463; Maho v. B. R. R. Co., 104 Mass. 137; Campbell v. N.Y. C. & H. R. R. R. Co., 19 N.Y. S. R. 659; Near v. D. & H. C. Co., 32 Hun, 557.) The rule established by the Appellate Division in this case that the injury which caused the death of the intestate was one upon which she could have maintained an action but for death is clearly justified by the striking facts of the case, and the appellant's contention against it cannot prevail. (Code Civ. Pro. § 1902; Hughes v. City of Auburn, 21 A.D. 311.)
The plaintiff seeks in this action to recover the damages resulting from the death of her daughter, a young girl, about twenty-two years old at the time of her death, in the month of May, 1892.She died from a disease which one of the physicians described as catarrhal pneumonia, caused or aggravated by the unwholesome atmosphere of the house where she lived with her mother. It is alleged that in consequence of offensive air and dampness in the house, caused by sewage entering the cellar from the drains and sewers constructed by the defendant, the deceased contracted the disease from which she died, or that it was so aggravated from these causes that death resulted. The facts have already been stated, and they need not be repeated here. They show that in November, 1881, the plaintiff purchased and went into possession of a frame dwelling house in Auburn with her family including this daughter, then about eleven years old. The lot on which the house stood was about four rods wide and ten deep. At that time and for many years before there had been about six feet under the surface of the soil of the lot what is called a stone drain or dry stone sewer connected with the general drainage system of the city. This drain had been built across the private lot by the city and, it is claimed, without having acquired any right from the owner, though it appears he contributed to the expense by payment of an assessment on the property and made a connection into it from the cellar of the house by means of a tile drain. This was the situation when the plaintiff purchased the house and moved into it. Subsequently the city greatly enlarged the drainage area which was originally intended to be drained by this sewer and by this action as well as by neglect to change or enlarge the sewer the city sewerage was forced into the cellar which produced the unhealthy condition of the house described.
We must assume in the present condition of the record that the death of the plaintiff's daughter is traceable to the neglect of the defendant in failing to correct the causes which rendered the plaintiff's house unwholesome. The question will then arise whether that is a sufficient legal basis for the statutory action for damages resulting from the death, and further, whether such neglect to observe sanitary rules can be said in such cases to be the natural and proximate cause of death within the meaning of the rule of liability for negligence.
The right of the plaintiff to maintain this action depends upon the right of the deceased herself to maintain it had she survived the sickness resulting in her death, and this suggests the inquiry whether an individual who has suffered from disease, super induced by the neglect of the authorities of a city or village to observe sanitary laws in the construction or maintenance of a system of sewerage, can recover damages for the injury from the municipality. If one member of a family can, so can every member, and if one family may, so may every family, and every person who can give proof enough to carry the case to the jury. It matters not what the disease may be or the cause, so long as it may be traced by proof to some act or neglect on the part of the municipal authorities. There are few communities where places or conditions may not be found that generate disease, and if the municipality may be charged with the results, traceable to these conditions, it is indeed subject to a liability more serious and far-reaching than has heretofore been recognized.
The progress made in recent times in sanitary science has doubtless, done much to stimulate and develop this idea. It is comparatively easy for the mind to reach the conclusion that the remedies of the law should always keep pace with modern progress in everything that concerns the welfare of the individual, and, in a certain sense, that notion may be quite correct. But advances in that direction, when deemed necessary or healthful, must be the work of legislation, since the courts can only apply to new conditions old and settled principles, and in this process of development a point is soon reached where the power of the court ends and the duty of the legislator begins. There is no statute that I am aware of that would authorize an action against the defendant by the deceased on the facts disclosed by this record had she lived. If an individual injured by disease produced by the acts or neglect of a city, such as are stated in the complaint, can recover damages at all, it must be upon some principle of the common law; and had it been suggested half a century ago that such a principle existed, the assertion would have been received with some surprise. In the form in which this case comes here, there is ample room to urge in argument elements of individual hardship well calculated to disturb the mind and divert it from the questions of law that underlie the action. On the principle that there can be no wrong without a remedy, courts are sometimes astute to discover grounds for relief in cases of this character, that, when applied as general principles to like cases, are found to be exceedingly inconvenient, if not untenable, and, hence, very frequently, have to be distinguished, modified or entirely abandoned. The principle upon which the judgment in this case rests is that an individual who has suffered from disease, caused by the neglect of a city to observe sanitary laws with reference to its sewer system, may recover damages from the city. This principle, if sanctioned and applied generally to all cases coming within its scope, cannot fail to produce evils much more intolerable than any that...
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