Johnson v. City of New York

• Decision Date: 02 October 1906
• Citation: 78 N.E. 715,186 N.Y. 139
• Parties: JOHNSON v. CITY OF NEW YORK et al.
• Court: New York Court of Appeals Court of Appeals

186 N.Y. 139

78 N.E. 715

JOHNSON

v.CITY OF NEW YORK et al.

Court of Appeals of New York.

Oct. 2, 1906.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Louise Johnson against the City of New York and others. From a judgment of the Appellate Division of the Second Department (96 N. Y. Supp. 754,109 App. Div. 821) affirming a judgment entered on a verdict at Trial Term in favor of plaintiff, defendants appeal. Reversed, and a new trial ordered.Charles F. Brown, John G. Milburn, W. W. Niles, and James D. Bell, for appellants.

S. F. Kneeland, for respondent.

CULLEN, C. J.

This action was brought to recover damages for personal injuries suffered by the plaintiff by being struck by an automobile while witnessing a speed test or race of the machines in a public highway in the borough of Richmond, city of New York. The highway, which was in an outlying part of the city and known as the ‘Southside Boulevard,’ had been used as a resort for fast driving for a number of years. The race or speed contest was conducted by sending the automobiles, a single one at a time, over a measured distance on the highway. It was held under the assumed authority of the following resolution adopted by the board of aldermen: ‘Resolved, That upon the recommendation of the local board, first district, borough of Richmond, permission be and the same hereby is given to the Automobile Club of America to conduct speed trials for automobiles on the Southside Boulevard, in the Fourth Ward of the borough of Richmond, on Saturday, May 31, 1902, between the hours of 11 o'clock a. m. and 4 o'clock p. m., or in case the day be stormy, on the first clear week day thereafter between the same hours, and that during said hours on said day a speed of greater than eight miles per hour may be attained, to which end any and all ordinances regulating the speed of vehicles is hereby suspended, such suspension to continue, however, only for the day and place on which the privilege herein mentioned and conveyed is exercised; and provided, further, that the said Automobile Club of America furnish all proper police protection over that part of the Southside Boulevard over which the said trials are to be conducted.’ The plaintiff was present as a spectator. She came from her residence about five miles away in company with her husband and others, as she said, ‘to see the races.’ She first witnessed the race from the highway, but finding a better view could be obtained, she passed from the highway into an adjacent clump of woods and there remained. Many automobiles went over the course without mishap. Finally, one machine, moving at the rate of about a mile a minute, by some mischance was deflected from the road into the woods and struck and injured the plaintiff. At the conclusion of the evidence the learned trial judge, over the objection and exception of the several defendants, directed a verdict against them all on the ground that the speed contest was unlawful and a nuisance, and submitted to the jury only the question of damages. That judgment has been affirmed by the Appellate Division, and from the judgment of the Appellate Division this appeal is taken.

It may be conceded that the action of the city in authorizing the use of a public highway as a racecourse for automobiles competing against time was illegal, and that the act of the other defendants in holding the race under that permission was equally illegal. Under the law, at the time of this accident, any person driving or operating an automobile or motor vehicle upon any highway within any city or incorporated village at a greater rate of speed than eight miles an hour, ‘except where a greater rate of speed is permitted by the ordinance of the city,’ was guilty of a misdemeanor. Laws 1902, p. 688, c. 266. The special ordinance under which the race took place was passed by the common council on April 15, 1902. That this ordinance, which did not assume to authorize the operation of automobiles generally at a greater rate than that prescribed in the statute, and permitted only certain specified persons to use the highway as a racecourse on a particular occasion, was not only invalid as a regulation of the speed of automobiles, but also operated as a participation by the city in the commission of the unlawful act, is settled by the recent decision of this court in Landau v. City of New York, 180 N. Y. 48, 72 N. E. 631,105 Am. St. Rep. 709. In that case the plaintiff was injured by a discharge of fireworks in a city street. There had been a general ordinance passed by the municipality which forbade the discharge of fireworks in the streets. A short time prior to the accident the common council passed a resolution suspending the ordinance so far as it might apply to the meetings or parades of political parties during the election campaign of 1902, the suspension to continue till November 10th of that year. It was conceded by this court that the municipality would not have been liable for failure to enact general ordinances restricting or forbidding the discharge of fireworks, and it was contended that the action of the common council was a mere repeal pro tanto of the previous ordinances, a repeal for which the city could not be held liable any more than for failure to pass the original ordinance. This court took a different view, and we held that the resolution authorizing the discharge of fireworks at political meetings and parades was not an exercise of the power possessed by the local authorities to regulate the use and discharge of fireworks, but merely an unlawful special license or permission to individuals. The action of the defendants was also illegal in other respects than those relating to the rate of speed. It assumed to grant to individuals the right to appropriate the highway for a private purpose, to wit, that of a racecourse, to the exclusion of the public. Authority reposed in the common council by the charter (Laws 1901, p. 28, c. 466, § 50) ‘to regulate the use of streets and sidewalks by foot passengers, animals and vehicles, to regulate the speed at which vehicles are propelled in the streets,’ etc., gave no power to divert the highway from public to private use. The authority was to regulate public travel, not to exclude the public. Of course, in the congested condition of many of the streets of the city of New York restrictions, possibly of a somewhat arbitrary character, are necessary to secure public passage along the highway; otherwise intolerable confusion would exist and the streets become blocked so that travelers could move in no direction. Such regulations are within the power of the municipal authorities. So, also, it may be that the right of the municipal authorities to allow, at certain seasons of the year and on certain streets where it can be safely done, the operation of vehicles at a greater speed than elsewhere permitted and the use of the street for sleighing or coasting, can be sustained. This it is unnecessary to determine. In those cases every member of the public has an equal right to share in the privileges granted in the street. There is no appropriation of it for a private use. The present case is radically different. The occupation of the highway was to be exclusive in the parties to whom the permission was granted. Therefore, the race or speed contest held by the defendants was an unlawful use and obstruction of the highway and per se a nuisance. Pen. Code, § 385, subsec. 3.

But granting that the action of the defendants in the use of the highway was illegal, the question remains: Was it illegal against the plaintiff so as to render the parties participating therein liable to her solely by reason of the illegality of their acts and regardless of any element of negligence or other misconduct? If the plaintiff had been a traveler on the highway when she met with injury a very different question would be presented. Highways are constructed for public travel, and, as already said, the acts of the defendants were, doubtless, an illegal interference with the rights of the traveler. It may well be that for an injury to the traveler, or to the occupants of the lands adjacent to the highway, or even to a person who visited the scene of the race for the purpose of getting evidence against the defendants and prosecuting them for their unlawful acts, the defendants would have been...