Blakeslee v. City of Geneva

61 A.D. 42, 69 N.Y.S. 1122

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1901
• Status: Published

Opinions

"Williams, J.:

The judgment and order appealed from should be affirmed, with costs.

The action was brought to recover damages for injuries to the plaintiff alleged to have been caused by the negligence of the defendant. An open trench in one of the defendant’s streets was left unguarded and unlighted at night. The plaintiff, while riding with her husband in a carriage through the street, was thrown from the carriage, upon its being driven into the. trench, and injured.

The trench was opened, not by the defendant itself, but by a property owner, for the purpose of making connections between his house and the sewer and water mains along the street. It is contended now, .as it was at the trial, in behalf of the plaintiff, that the defendant, in legal effect, opened the trench itself, and was, therefore, guilty of negligence in leaving it unguarded and unlighted in the night time, without any proof of notice of the specific neglect complained of. The court, however, in submitting the case to the jury, charged that the defendant was not chargeable primarily with the duty of guarding the excavation, as if made by itself, but such duty rested upon the property owner who actually' opened the trench, and, therefore, the defendant was not chargeable with negligence, until after due notice of the neglect complained of, either actual or constructive. In the view we take of the case, therefore. we- need only consider' it upon the theory on which it was submitted to the jury." There was evidence sufficient to submit to the jury to the effect that the accident occurred at nine o’clock in the evening that a resident on the street, observing that there was- no light to-guard the excavation,-though there was a barrel and stick barricade, went and -formally notified Joyce, the defendant’s general sewer inspector, of the neglect a half or three-quarters of an hour before the accident, and that it would have taken Joyce not. to exceed five minutes to go and put up the light after such- notice was- given. He did not go to the place until just after the accident. Upon this evidence the court left it to the jury to say whether the defendant was guilty of negligence in not putting up a light or barricade to guard the trench within a reasonable time after it had notice of the neglect of the property owner' who opened the trench to put up such light and barricade. The jury found this issue in plaintiff’s favor. It was a question of fact for the jury, and we should not disturb their finding. The question of the absence of contributory negligence was-also one of fact for the jury upon the evidence in the case. We cannot say the amount of the verdict, $1,000, was excessive. The question was one of fact for the jury. The only other question calling for consideration relates to some requests to charge, viz.:

1. The defendant requested the court to charge that the fact that an inspector saw the excavation unguarded in the daytime while the workmen were there was not evidence that the defendant was' negligent. Declined with exception.

2. The court, on the request of the plaintiff, further charged that whether the white light was sufficient, and whether what was put along the ditch was sufficient as a barricade and light, was a question of fact for the jury to consider, under all the evidence, and defendant excepted.

A careful reading of the body of the charge, and of the disposition by the court of the other requests, fails to show why these two requests were made, or how they were in any way material or important, considering the theory upon which the case was submitted to the jury. Whether the defendant was negligent by reason óf anything the inspector of streets saw in the daytime while the workmen were there was of no importance, because the court clearly left the case to the jury upon the single question as to whether the defendant was guilty of negligence in not putting up . a light or barricade at the trench after Joyce, the sewer inspector, had been notified that the property owner had neglected to put up such light or barricade. This called for & consideration merely of what occurred or did not occur, during the hour between eight and nine o’clock of the night of the accident, after the men had left for the night. The jury could not have supposed they were to consider what the inspector of streets saw in the daytime while the men were there, in determining the particular ground of negligence submitted to them'.

As to the other request, it is not apparent why the request was made or charged, as to the sufficiency of a white light, because concededly there was no light of any color to guard the trench on the night of the accident, prior to or at the time of the accident. There was no impropriety in leaving for the consideration of the jury the question as to the sufficiency of the barricade put along the trench, because a barrel and stick ten or twelve feet long had been placed along the trench as a barricade by the men before they left, and the question was left to the jury generally in the body of the charge, whether the defendant had provided, after due notice, adequate barricade or lights or other warning at the trench. The court may not have understood the particular language of these two requests, or there may have been a mistake by the reporter, in taking his minutes or transcribing them. There was evidently some mistake somewhere. We are unable, however, to see how any injury could have been done to the defendant in disposing of the requests. There is nothing apparent which calls for a reversal of the judgment or order.

The judgment and order should be affirmed, with costs.

All concurred, except Laughlin, J., who dissented in an opinion.