Durfield v. City of New York

101 A.D. 581, 92 N.Y.S. 204

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1905
• Status: Published

Opinions

Laughlin, J.:

Subdivision 14 Of section 49 of the Greater New York charter (Laws of 1897, chap. 378) authorized the municipal assembly to enact ordinances “ in relation to exhibiting banners, placards or flags, in or across the streets, or from houses or'other buildings.” Pursuant', to this authority the municipal assembly in the year 1900 passed an ordinance known as approved NO. 515, granting pérmission to all póliti-" .cal parties “ to erect, place and keep transparencies, erect poles and string banners therefrom, the commissioner of highways consenting thereto, and where banners are swung from houses, the property owners consenting thereto. The work to be done and materials supplied at their own expense.” The permit for the erection of the pole at this place was issued by the superintendent of the bureau of street openings, paving and repaving, pursuant to this ordinance, and it provided that the work was to be done “to the entire satisfaction of this department,” and it was approved by. the commissioner of highways.'

In view of this provision of the charter and of this ordinance and of the permit, it was doubtless lawful for the licensees to erect a pole at this point for the support df the banner, but in doing so they were required to exercise care commensurate with the dangers apparent and to be foreseen. The evidence shows, and doubtless we might take judicial notice of the fact-, that while we dóhot daily experience a gale of wind of sixty miles an hour, the wind occasionally and not infrequently in this latitude does attain that or a greater velocity. The licensees were called upon to exercise the care and caution that reasonably prudent men would exercise in securing the erection of a pole of sufficient strength, in view of the • strain of the banner upon it, to withstand such storms of wind, hail, rain or sleet as from past experience might be expected in. this locality in the season during which they permitted the banner to remain over the street. Their motives were doubtless patriotic, but that is no excuse for neglect which endangered public safety. They were called upon to know that, unless they were competent to understand the strength of the material and the effect upon it of winds and storms, they were endangering public travel. If they did not possess the necessary knowledge of these things, they were called upon to'employ or act upon the advice of others who did. If this pole had been selected. and tested with' proper care,' and if it had been properly secured in' place, we agree with the jury that the acci- • dent would not have happened. The liability of the licensees, therefore, was fairly established. We are of opinion, however, that the verdict, $10,000, is' excessive, and that it should be reduced to $5,000. ’

We are of opinion, further, that the city must be awarded a new trial for the error in receiving evidence against it that the pole was not properly guyed. The complaint did not- charge the city with negligence in that respect.. The evidence was material. The jury might have found that the pole would not have broken, notwithstanding its defects-, if it'had been properly guyed, and also that it. wmuld not have fallen to the ground if it did break; •

The learned’ counsel for the city strenuously contends that the complaint should have been dismissed or a verdict directed in favor of the city, because it appears that the defects in the pole were not discoverable by casual inspection with the naked eye. . This question will likely arise upon a new trial, and, therefore, should receive an expression of our views for the guidance of the trial court. The evidence shows that-the city, after granting the permit, paid no ¡attention to the erection of these poles. It neither inspected the poles nor supervised their erection. Its failure to perform its duty would not render it liable if it clearly appeared that the defects would not have been discovered by the flill performance of its duty. We think this was a question for the jury. It cannot be maintained ¡as matter of law that the city is not. chargeable with- negligence .in. permitting a licensee to erect an obstruction in and over a public ¡street which, although -apparently safe on the exterior, is in fact unsafe, owing to defects that. would have been discovered by the ¡application -of ordinary and well-known tests. The. city had full ■control over this matter. ■ It could grant or refuse. the license at will. In granting the license, it could have imposed conditions and restrictions tending to insure the protection-of the public against the ■negligence of the licensee. It could have required, as a condition ■of grahting the ¡permit, that a competent- inspector be employed by the city, at the expense of the licensee, or it could have required a bond of indemnity which would have protected the city and incidentally have aroused, the licensees to.- greater care and caution. We do not mean to be understood as holding that it was'the duty of the city as matter of law in the circumstances ;of. this case to test the pole. We merely decide that that was- a .matter for the- jury in the circumstances. If the licensees" were: competent-and employed ’ •competent men to select- and. test the poles, a . jury might very well determine that, if the city through its representatives observed that this was done, it' was - not called upon to' make. a. further ¡test.- It ■cannot, however, be held as matter of law that, if the city had exercised proper care in supervising the erection of the pole, it would not have discovered either that the pole was not properly inspected and tested or was unsuitable, owing to its defects, or was improperly erected in that it was not properly guyed. In the present state of the pleadings, however, liability for the failure to properly guy the pole cannot be predicated as against the city.

It follows, therefore, that the judgment and order should be reversed as to the individual appellants and a new trial granted as to them, with- costs to said appellants to abide the event, unless the respondent stipulates to reduce the judgment as entered, including interest and costs, to. the sum of $5,206.42; in which event, the judgment as so modified and order appealed from are affirmed, with-put costs; and as tó the city, the judgment and order are reversed and a new trial granted, with cost’s to the appellant to abide the event. -

• Van Brunt, P. J.,.O’Brien and Hatch, JJ., concurred.