Jewhurst v. City of Syracuse

• Decision Date: 07 February 1888
• Citation: 108 N.Y. 303,15 N.E. 409
• Parties: JEWHURST v. CITY OF SYRACUSE.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 303

15 N.E. 409

JEWHURST

v.CITY OF SYRACUSE.¹

Court of Appeals of New York.

February 7, 1888.

Appeal from general term, supreme court, Fourth department.

Action for damages by Frances Jewhurst against the city of Syracuse, by reason of injuries sustained on a defective sidewalk just outside the line of a street. Judgment for plaintiff, and defendant appeals.

C. L. Stone, for appellant.

Forbes, Brown & Tracy, for respondent.

PECKHAM, J.

The place where the accident occurred was outside of the actual limits of Tallman street. That street had been legally opened for some years of the width of 60 feet, and the accident happened two or three feet north of its northern boundary, the street running east and west. There had never been any such dedication and acceptance on the part of the owners and the city authorities, of that portion of land where the accident happened, as to make it any portion of the public street over which the city had any jurisdiction. It had not built the sidewalk or any portion thereof, and never assumed any jurisdiction over this piece of land. The city had no legal right, through its officers, to go upon the premises where the accident happened, for it did not own the same. Under these circumstances, we think it clear that the city cannot be held to any liability for the condition of the sidewalk outside of the line of the street, founded upon any duty to repair such sidewalk; for, as it did not build it, never assumed control over it, did not own, and had no legal right to go upon, the land where the plank lay, such duty to repair, or liability for neglect to repair, does not exist. Carpenter v. City of Cohoes, 81 N. Y. 21;Veeder v. Village of Little Falls, 100 N. Y. 343, 3 N. E. Rep. 306. Nor is there anything in the case of Beck v. Carter, 68 N. Y. 283, which aids the plaintiff. In that case defendant's testator had made an excavation about 10 feet from the line of an alley, which, under the facts in that case, the court held was to be considered as part of the public highway, and the plaintiff, passing along the alley on a dark night, fell into the excavation and was injured. The defendant was held liable for making an excavation so near to the highway as to make its use dangerous to one while exercising ordinary care. The action was against the person who made the excavation, and not against the municipality. The case is also unlike that of Sewell v. City of Cohoes, 75 N. Y. 45. The officers of the city had in that case treated a piece of land within the city limits as a public street, and, under and in pursuance of a resolution of the common council which fixed the grade, the land had been graded and paved as a street by the city authorities, and was used and traveled over as a public highway. The land had been, in fact, actually appropriated by the city, and it had assumed the burden and duty of keeping it in a safe condition like any other of the public streets of the city. The court held that, under such circumstances, the city was estopped from setting up a lack of title to the street, or that it was not a legal highway.

But there is a class of cases of which Coggswell v. Inhabitants of Lexington, 4 Cush. 307;Hayden v. Inhabitants of Attleborough, 7 Gray, 338;Alger v. City of Lowell, 3 Allen, 405, and a number of others, are examples where a city has been held liable for a failure to guard the boundary of a street under circumstances which rendered the roadway dangerous on account of such failure. They are mostly cases where the injuries were received outside of the legal limits of the highway, but at a spot which was apparently within such limits, and which was rendered dangerous by an obstruction or an excavation, and no step had been taken to guard the traveler from running against or into it while passing along what seemed to be the highway, and in the exercise of reasonable care and caution. Thus, in the first of above cases, plaintiff was traveling in the evening along the highway, the line of which was not indicated by any visible objects; and the post which occasioned the injury was outside of, yet near, the true line of the highway, and within the limits of the general course and direction of the travel, and where travelers were accustomed to pass, and rendered the traveling dangerous. The court held the defendant liable, even if it had no right to enter upon the land where the post was to remove it, because it clearly had the right, and it was its duty, if it could not lawfully remove the post, to place such a fense or other barrier between it and the road as would have rendered the road safe. So in the case of Hayden v. Inhabitants of Attleborough, supra, where the limits of the highway were not indicated by any visible objects, and there was nothing to show a person driving thereon in the evening that the course he was pursuing was not within the way intended for public travel, the defendant was held liable for an injury caused to the plaintiff by being thrown from a wagon at night into a cellar which had been dug two years before, although the cellar was outside of the limits of the road, and the plaintiff, at the time of the accident, was outside of such limits. But there was evidence that the owner of the land at the place of the accident had some years before thrown it open for travel, and set back his fence; and such space so thrown open was as smooth as the highway, and in good order to travel upon with horses and carriages, and before the digging of the cellar much of the travel had been accustomed to pass over the place where the cellar was dug. The court charged the jury that if the line of the highway was not indicated by any visible objects, such as fences, banks of earth, or other objects; and if there was nothing to show the plaintiff in the evening that the route she was pursuing was not within the way intended for public travel; and if within the general course and direction of the travel, where travelers were accustomed to pass along the said highway, the cellar was so situated within the limits of the highway as to render the traveling there dangerous; or without the limits of the located way, but so near as to render the travel there dangerous, in the condition in which it was at the time of the accident; and there was nothing to indicate to travelers their approach to the cellar until too late, etc.,-then, after proper notice, the town would be liable. This charge was approved by the supreme court of Massachusetts, which held that the want of a railing necessary to the security of travelers made a highway ‘deficient’ within the meaning of the statute. The court was...