Schafer v. Mayor, Etc., of City of New York

• Citation: 154 N.Y. 466,48 N.E. 749
• Parties: SCHAFER v. MAYOR, ETC., OF CITY OF NEW YORK.
• Decision Date: 07 December 1897
• Court: New York Court of Appeals

154 N.Y. 466

48 N.E. 749

SCHAFER

v.MAYOR, ETC., OF CITY OF NEW YORK.

Court of Appeals of New York.

Dec. 7, 1897.

Appeal from supreme court, appellate division, First department.

Action by Edward R. Schafer, as administrator of Franz Schafer, deceased, against the mayor, aldermen, and commonalty of the city of New York. From a judgment of the appellate division (42 N. Y. Supp. 744) affirming a judgment entered on a nonsuit, plaintiff appeals. Reversed.

Andrews, C. J., and Gray and Haight, JJ., dissenting.

Maurice Untermyer, for appellant.

Theodore Conoly, for respondent.

VANN, J.

The scene of the accident which gave rise to this controversy was a point in the city of New York where 127th street, running substantially east and west, crosses at right angles 2d avenue, which runs nearly north and south. At this place, in September, 1894, an elevated railroad ran through the avenue, supported by iron columns, two of which stood in the central line of the street, and two more on the line of the cross walk on the easterly side of the avenue as it crosses the street. From the avenue, towards the east, the street had not been graded, paved, or lighted, but as early as 1881 the legislature had made it the duty of the city to open it as a street (Laws 1881, c. 105); and, although never formally opened, a sewer had been constructed in it by the city. It was patrolled by policemen, and it had been used by the public as a street for many years. The witnesses described it as a thoroughfare, and evidence was given tending to show that from 30 to 100 vehicles of different kinds passed over it every day. In 1887 the city laid a water main through this part of the street, and left the cover of a manhole projecting about five inches above the surface of the ground, apparently in anticipation of paving the street at some time, when the top of the projection would become level with the pavement. The cover was a circular iron box, about 18 inches in diameter. The manhole, covered in this way, was in the center of the street, as bounded by the lots and buildings on either side, and was about in the easterly line of the easterly cross walk of the avenue, and a few feet southeasterly of one of the iron columns. There were two traveled ways in the street, as it crossed the avenue, each about 15 feet wide,-one on either side of the iron columns that stood in the central line of the street. At about 6 o'clock in the afternoon of Sunday, September 2, 1894, the plaintiff's intestate, a healthy man about 28 years old, and weighing 200 pounds, was driving a large truck, heavily loaded with kegs of beer, and drawn by two powerful horses, with the intention of delivering some beer at Sulzer's Park, a place of resort on the south side of 127th street, and directly east of the avenue. He drove southerly on the westerly side of 2d avenue, towards 127th street, and, when near the latter, stopped; and his helper alighted, to go across and open the gate of the park. The deceased then turned his team to the east, and drove in the traveled way on the north side of the street. Directly before him then was the curb on the easterly side of the avenue, which projected several inches above the surface of the street, and the grade from the curb to the east was upward, at an angle of between 4 and 5 deg. The traveled way was directly across the curb, and it was necessary to drive over it. A little to his left, after crossing the curb, stood one of the iron columns; and almost in front of him, about 20 feet easterly from the curb, was the manhole in question. He started his horses at a quick trot, apparently to get enough momentum to carry his heavy load over the curb, and up the incline beyond. Evidence was given tending to show that as he crossed the curb he was bounced upward from his seat, which was 8 or 10 feet from the ground, and that he then fell forward onto the pole; and, when the left wheel forward struck the cover of the manhole, he was thrown to the ground, one of the wheels passed over him, and he died almost instantly. His body was found at a point about 20 feet easterly from the manhole, and, when the horses stopped, the rear of the truck was not far from the manhole. One witness said that ‘the hind wheels were straight with the manhole, and the other wheels were towards the other way’ (apparently meanding towards the south). Another witness testified that when the front wheels struck the curb the decedent was jounced, and lost his balance. He reached forward, and got a tighter grip on his lines at the time he was jounced. He fell forward onto the pole, and when the left front wheel hit the manhole he fell to the ground, and the wagon passed over him. ‘He had not lost control of the horses at the time. I suppose he tried to get a tighter hold, so that he could not catch the manhole,-so that he could get away out of the manhole.’ When the plaintiff rested,...