Schmitt v. City of Syracuse

• Decision Date: 01 June 1920
• Citation: 128 N.E. 119,229 N.Y. 161
• Parties: SCHMITT v. CITY OF SYRACUSE.
• Court: New York Court of Appeals Court of Appeals

229 N.Y. 161

128 N.E. 119

SCHMITT

v.CITY OF SYRACUSE.

Court of Appeals of New York.

June 1, 1920.

Action by Albert V. Schmitt, an infant, by John Schmitt, his guardian ad litem, against the City of Syracuse. From a judgment for plaintiff, defendant appealed to the Appellate Division, which affirmed (179 N. Y. Supp. 949), and defendant appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Edmund H. Lewis, Corp. Counsel, of Syracuse, for appellant.

Olmsted, Van Bergen & Searl, of Syracuse (A. Lee Olmsted, of Syracuse, of counsel), for respondent.

CRANE, J.

Prior to May 22, 1915, a boy 2 years of age had fallen from a bridge which spanned Onondaga creek at Taylor street in the city of Syracuse and had evidently been drowned. The coroner of Onondaga county, with the aid of his assistants, had dragged the creek for several days in an unsuccessful effort to recover the body. As a last resort he determined to use dynamite to bring the body to the surface, and fired the explosions at a point in Onondaga creek near Spencer street. The dynamiting was under the direct supervision of a man named Ross, employed by the coroner, who was assisted by two of coroner's regular assistants.

The second deputy commissioner of public works was a man named Murray Street. On the evening of May 21st, Street was informed by the coroner that dynamite was to be used the next day in the creek, and arrangements were made to get some dynamite belonging to the city. Street sent his chauffeur, Emig, the next morning with 40 sticks of dynamite over to the corner of Maltbie and Spencer streets, where he found Ross and the two assistants with a Ford car. This car was a delivery car having a black box behind the driver's seat about 4 feet square, with doors on the back end. The dynamite was taken from Emig's automobile and put in the box of the Ford car. In the box were also some caps and a little fuse. Street thereafter procured a box of fulminate of mercury caps, and he and the coroner went over to Maltbie street, where Ross was preparing the dynamite. While Street was there 10 or 15 sticks were made ready for exploding. The sticks of dynamite were taken over to the creek in a market basket and thrown into the creek. The explosions continued with loud report during the morning.

After the noon hour 100 more sticks of dynamite were brought and placed in the Ford car, which at that time was in Spencer street, about 40 feet west of the corner of Maltbie street. While Ross was preparing the sticks for firing, an explosion occurred, causing damage to adjoining property and death and injury to bystanders. This was May 22, 1915. No danger signal was displayed in the street, or on or about the Ford car, during this time.

The plaintiff in this case, a boy 17 years of age, had finished his work for the day, it being Saturday and had gone to Hendrick's art store with a delivery boy who worked there. This boy had a package to deliver on West Genesee street, which runs east and west, about two blocks south of the place of the accident. The boys rode their bicycles out West Genesee street and delivered the package. On their way back they heard the explosions, and rode over to Maltbie street to see what was going on. At this time there were 15 or more people around the car. The plaintiff stood 6 or 8 feet from it at the time of the explosion. He was very seriously hurt.

Section 91 of the Second Class Cities Law (Consol. Laws, c. 53) makes it the duty of the commissioner of public works to inspect the streets with sufficient frequency to ascertain their condition and cause the same to be kept free from obstructions and in good condition and repair and reasonably safe for public use.

Article 15a of the Labor Law (Consol. Laws, c. 31) regulates the use, transportation, and storing of explosives. Chapter 685 of the Laws of 1905, entitled ‘An act to supplement the provisions of law relating to the department of public safety of the city of Syracuse,’ in section 17, enacts:

‘No person shall manufacture, compound, transport, store, sell or offer or keep for sale or use, have or keep for use within said city any dangerous, explosive, combustible or inflammable compound, mixture, material or substance of any name or nature whatsoever except in accordance with such regulations governing and restricting the same, and under a permit issued by said commissioner of public safety therefor, whenever said regulations shall require the same.’

These laws were not complied with.

Section 244 of the Second Class Cities Law contains a provision that no civil action shall be brought against the city to recover for damages sustained in consequence of the defective condition of the streets unless written notice of such defective or dangerous condition shall have been given to the commissioner of public works, or in the absence of such notice unless it appears that such defective, unsafe, and dangerous condition existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence.

On the trial of this action to recover damages for the injuries received by him the plaintiff had a verdict from the jury in his favor, and the judgment entered thereon was unanimously affirmed by the appellate Division. The...