Davenport v. . Ruckman

37 N.Y. 568, 5 Trans. App. 254

• Court: New York Court of Appeals
• Decided: January 5, 1868
• Status: Published

Opinion

Hunt, Ch.J.

The jury have determined in favor of the Plaintiff both the question of the negligence of the Defendants and the absence of negligence on the part of the Plaintiff. There were sufficient facts in evidence to warrant the submission of these questions; and if the legal propositions were properly decided by the Court, the judgment must be affirmed.

It is insisted that, under the circumstances indicated, the corporation of the city of Hew York has been guilty of no negli gence. In other words, it has no such absolute duty laid upon it, of repairing the streets, as to render it subject to an action for its neglect; that the duty is modified by the fact that it resides in them as a political power, and that the corporation is endowed with a large discretion as to the expediency of making such repairs. This suggestion is not new. It has been before argued in this Court, and distinctly decided in the negative. The cases of Hutson v. The Mayor (5 Seld. 163), of Conrad v. The Trustees of Ithaca (16 N. Y. R. 158), of Weety. The Trustees of the Village of Brockport (id. 161), and of Congreve v. Smith (18 N. Y. 79), settle the liability, beyond further discussion, whether the injury arises from some act done by the corporation, or from an omission of duty on their part.

The Appellants further insist that the Plaintiff should have been nonsuited on the ground that she herself was guilty of negligence in walking through the streets unattended and nearly blind. In this connection may also be considered what, it is insisted, was error in the Judge’s charge on this branch of the case. It appeared from the evidence that at and previously to the time of the occurrence of the accident, the Plaintiff was suffering from, amaurosis, or paralysis of one of her eyes, and the power of vision of both eyes was impaired. She could 'not distinguish the features of those she met, but she knew that they were persons walking; and a short time before the injury she had been able, as it was testified, to distinguish the color of the coat worn by her physician; and she ■was in the daily habit of walking the streets as she had occasion. Contradictory evidence was given as to difficulties she met with in the street, on the same day of the accident, and before its 'occurrence. It was for the jury to ascertain the truth on that subject. The Judge informed the jury that the circumstance that this person was partially blind, and fell into this opening in the daylight, was of no importance, and that it was not important that such a distinction should be made in the present instance.

He adds, the question is this, “ whether it was so improper or imprudent for Miss Davenport to have gone into the street unattended in her then condition of sight, that it would be negligence

on her part to do so, sufficient to prevent her from recovering compensation for an injury she might sustain from the negligence of others, while travelling or passing along the streets ? ” This was the precise question to be determined by the jury, and, I think, should have been submitted as a question of fact, and that it was finally submitted in the above proposition. The streets and sidewalks are for the benefit of all conditions of people, and all have the right, in using them, to assume that they are in good condition, and to regulate their conduct upon that assumption. A person may walk or drive in the darkness of "the night, relying upon the belief that the corporation has performed its duty, and that the street or the walk is in a safe condition. He walks by a faith fortified by law; and if his faith is unfounded, and he suffers an injury, the party in fault must respond in damages. So, one whose sight is dimmed by age, or k near-sighted person, whose rays of vision are always imperfect, or one whose sight has been inj nred by disease, is each entitled to the same rights and may act upon the same assumption. Each is, however, bound to know that prudence and care are in turn required of him; and that if he fails in this respect, any injury he may suffer is without redress. The blind have means of protection and sources of knowledge of which we are not aware; but we are not called upon to give any opinion upon a case of total blindness. The Plaintiff could see persons, and could distinguish outlines. If a post had obstructed her path, the jury might well have said, upon this evidence, that she would have seen and avoided it. Whether a hole in the ground could be distinguished by her, and avoided, was for the jury to say; and whether her power of sight was sufficient to justify her in walking the streets alone, was eminently a question for them. “ A reasonable assurance of safety ” in passing through the streets when in a good condition, as submitted by the Judge; was a fair test of capacity. That which is assured is made certain, secure, or fixed; aud no better standard could be presented than a reasonable certainty of safety in using the streets (Sheridan v. Brooklyn, &c., R. R., 36 N. Y. R. 39; Ferris v. Union Ferry Co., 36 N. Y. 312 ; Renwick v. N. Y. C. R. R., 36 N. Y. 132; Ernst v. Hudson R. R. R. Co., 35. N. Y. R. 9). I see no objection to the rulings of law in regard to the liability of the Defendant Buclcman.

He was the owner of the house, and had allowed the cellar-way to become and to remain in a dangerous condition. He had recently sublet the premises to one Lamb, who entered into possession a few days before the trial. It was in a dangerous condition when he put his tenant in possession. This does not operate to release the Defendant from his liability. It simply added another party to the negligence. As between those parties, Buckman was the principal, as it appears by the lease and by the testimony that he agreed to put the premises in repair, but had failed to do so (Congreve v. Smith, supra; Dygert v. Schenck, 23 Wend. 446).

Both the Defendants were liable to the plaintiff for her damages, and there is no objection to their being joined in one suit.

The judgment should be affirmed, with costs.

All affirm.

JOEL TIFFANY,

State Beporter.