Sexton v. Zett

56 Barb. 119, 1867 N.Y. App. Div. LEXIS 258

• Court: New York Supreme Court
• Decided: June 25, 1867
• Status: Published

Opinion

By the Court,

Foster, J.

1st. The question propounded to the defendant, and excluded by the court below, was immaterial, and was properly excluded. Upon all the evidence it is clear that if the ditch in question had been made and left by the city authorities, (instead of the defendant,) in.the same condition that it was, and the plaintiff, without negligence on his part, had fallen into it and received an injury, the city would have been liable; for it was gross negligence to permit it to remain as it was, during the night; and the corporation, by permitting the defendant to construct the ditch, could not authorize him to allow it to remain open, to the hazard of human life, or excuse him for doing so. It is a well settled rule, that a person who interferes in any way with a sidewalk in a city, and leaves it in a dangerous condition, is liable for injuries caused thereby, whether he knew it to be dangerous or not; and irrespective of any permission from the public authorities to do the work from which the injury arises. (Creed v. Hartmann, 29 N. Y. Rep. 591. Congreve v. Smith, 18 id. 79. Congreve v. Morgan, Id. 84.) And the offer was not to show that he had authority to leave the ditch open and unprotected, but merely that he had authority to dig it.

[Onondaga General Term, June 25, 1867.

2d. There was no evidence, on either side, showing that the defendant was not guilty of the negligence which produced the injury. His own testimony showed that he was; and the whole evidence conclusively proved an entire want of care, and very gross negligence on his part; and the court below having left to the jury the question whether the plaintiff was free from negligence, and they having found that issue in his favor, the verdict was right, and the judgment should be affirmed.

Bacon, Foster and Mullin, Justices.]