Monk v. Town of New Utrecht

• Decision Date: 01 March 1887
• Citation: 104 N.Y. 552,11 N.E. 268
• Parties: MONK v. TOWN OF NEW UTRECHT.
• Court: New York Court of Appeals Court of Appeals

104 N.Y. 552

11 N.E. 268

MONK

v.TOWN OF NEW UTRECHT.¹

Court of Appeals of New York.

March 1, 1887.

Appeal from judgment of the general term of the supreme court, Second department.

Wm. Sullivan for appellant.

A. Simis, Jr., for respondent.

RUGER, C. J.

This action was brought to recover damages occasioned to the plaintiff by falling down a slope or declivity adjoining the road known as ‘Eighty-sixth street,’ in the town of New Utrecht, Kings county. This slope descended from the northerly exterior line of the sidewalk, 30 feet, at an angle of about 30 deg., and was intercepted near the middle by a fence running pallel with the road. The road was built about the year 1874, and was laid out with a road-bed 60 feet wide, flanked on either side by sidewalks 11 feet wide, raised about 1 foot above the level of the road, and bordered near the gutters with rows of trees. It was located partly in the town of New Utrecht and partly in Gravesend, and extended from the village of Bath to Fort Hamilton, both lying on or near the sea-shore, about two miles apart. The accident occurred about 10 o'clock in the evening, at a point nearly half way between the two villages; the plaintiff walking off the sidewalk, and rolling down the embankment on the north side of the road, whereby he sustained bodily injuries. The negligence complained of was the omission of the defendant to erect a railing or fence at the top of the bank sufficient to prevent persons using the highway from walking or falling down the declivity.

We are of the opinion that the town owed no duty to the traveling public to erect such fence, and that it was not negligence on its part, or that of its highway commissioners, to omit to do so. The alleged defect was incident to the plan of the road, and was created by the elevation of the road above the level of the adjacent land. Such irregularities are not at all uncommon in rural highways, and are not supposed to present any danger to the traveling public, when using ordinary care in the use of the road. The town had furnished a safe and sufficient roadway, of unusual width, whose boundaries were indicated on either side by a gutter and elevated sidewalk, bordered by rows of trees; and were under no obligation to erect barriers to prevent travelers from wandering into the adjoining fields. No possible difficulty existed in this case to prevent a traveler from following either the road or sidewalk by marks which could both be seen and felt, and it would be imposing a burden beyond all precedent to require a town to remove irregularities in the surface of the land outside of the road, for fear that some traveler might wander there, and thus sustain injury. Neither at common law nor by the statute were towns under any legal liability to respond in damages, even to persons injured by defects in the highways, until after the enactment of chapter 700 of the Laws of 1881. A manifest difference in this respect, arising out of charter provisions and the obvious requirements of the situation, exists between village and municipal corporations and country towns, in respect to such obligations. Hyatt v. Trustees of Rondout, 44 Barb. 385.

It was held in People v. Town Auditors, 74 N. Y. 315, that, ‘under our system, no corporate duty is imposed upon towns in respect to the care, superintendence, or regulation of highways within their limits.’ ‘Commissioners of highways have, by the statute, the care and superintendence of highways,’ and ‘they are responsible in a civil action for an injury resulting from their neglect to repair a highway, (if provided with means for that purpose,) whereby an individual sustains damages.’

On the other hand, the town, in its corporate character, has no control over the highways. It cannot lay out a highway or discontinue one. It is not liable for failure to keep highways in repair, and has but limited corporate duties to perform in respect thereto. People v. Board of Supervisors, 93 N. Y. 397. By the act of 1881, however, it was provided that towns should thereafter be liable for such injuries, in cases where the ‘commissioner or commissioners of highways of said towns are now by law liable therefor.’

It is seen that the liability of the towns is thus made co-extensive with that of commissioners of highways in towns. No absolute liability for such injuries was ever imposed by law upon such officers, but only a limited responsibility, arising out of their negligence, to the extent only that they were possessed of, or had power to obtain, means to make necessary repairs. Hines v. City of Lockport, 50 N. Y. 238;Hover v. Barkhoof, 44 N. Y. 113. It does not affirmatively appear in what manner the commissioners of the town of New Utrecht were supplied with funds for the repair of its roads and bridges, but it is shown by the evidence of one of its commissioners that he received $2,500 during the year 1882 for such purposes. It was testified to that such sum was all expended in that year for the ordinary repairs of the roads and bridges, and was not entirely sufficient for that purpose. The proof showed that from 65 to 70 miles of road were within the jurisdiction of the commissioners, and required care, expense, and repair; and, to have guarded the several places along said roads where banks or declivities existed, would have required the erection of two or three miles of barriers in addition to the expense for legitimate repair of the road-beds. Under such circumstances, it was confided to the discretion of the commissioners to apply the funds in their hands in making such repairs as in their judgment were most urgently needed, and they were not responsible for an error of judgment in doing so. Garlinghouse v. Jacobs, 29 N. Y. 297;Hover v. Barkhoof, 44 N. Y. 118.

It was therefore error for the court below to charge the jury that, if they found ‘that the great necessity was to keep the actual bed of the roadway safe, they were right in...