1. Where a corporation is sued for an injury growing out of
negligence of the corporate authorities in their care of the
streets of the corporation, they cannot defend themselves on the
ground that the formalities of the statute were not pursued in
establishing the street originally.
2. If the authorities of a city or town have treated a place as
a public street, taking charge of it and regulating it as they do
other streets, they cannot, when sued for such injury, defend
themselves by alleging want of authority in establishing the
street.
The action below was brought by W. P. Sheffield, against the
Mayor &c., of New York, to recover damages for injuries
received by him from stumbling over a stump at the
Page 71 U. S. 190
edge of the sidewalk around the lower end of the City Hall Park
in the City of New York.
Upon the trial it appeared that on the 16th December, 1857,
Sheffield, while crossing, in the evening, the lower end of the
City Hall Park, fell over a stump above the level of the sidewalk
and broke his thigh-bone; that the stump was about fourteen inches
distant from the curb of the sidewalk, and was about six inches
high and four inches in diameter at the top.
It also appeared that the place where the stump stood was, prior
to the 18th November, 1847, and had been for more than thirty
years, within and a portion of the City Hall Park, but that on the
day just named, the Common Council of New York adopted an ordinance
authorizing the Committee on Lands and Places, together with the
street commissioner, to adjust the lower corner line of the Park so
as to make a curve &c., and that under this ordinance -- to the
reading of which the counsel of the city, for reasons which will
appear in the argument, excepted -- the committee and street
commissioner shortened the Park twenty feet, cut down a tree there,
and threw those twenty feet -- within which the stump of the tree
-- the stump which had caused the accident, stood -- into the
public street.
The court charged thus:
"The corporate authority of New York, by virtue of their charter
and of the laws, have the charge and control of the streets and
sidewalks within the corporate limits, and they are bound to keep
them in good and safe condition. If they leave an opening in the
sidewalk, as is sometimes done, and a person coming along in the
night falls into it without any want of proper care on his part,
the defendants are liable for any injury that may be occasioned. So
if an obstruction on the face of the sidewalk, over which a person
stumbles -- boxes, if you please -- left out on the sidewalk on a
dark night, or barrels, over which a person stumbles and falls, in
the absence of want of care on his part, the defendants are equally
liable for the injury. The opening in the one case and the
obstruction in the other constitute the negligence, are evidence of
negligence on the part of
Page 71 U. S. 191
the authorities who have the control of the matter, and in order
to escape from the charge of liability, the burden is thrown upon
them to disprove negligence."
"If the plaintiff in this class of cases has been himself guilty
of negligence, and which materially contributed to the injury, then
he cannot recover, even if the defendants have been shown to be
guilty of negligence. The plaintiff must be free from fault. "
Page 71 U. S. 193
MR. JUSTICE MILLER delivered the opinion of the Court.
1. The first error claimed to be found in the record of this
Page 71 U. S. 194
case is based on the proposition of the defendant below, that
the
locus in quo was not a legally established public
street, and therefore the city was not liable for its condition. On
this point the court ruled adversely to the city.
The facts as shown by the bill of exceptions in reference to
this matter are in substance these: the place where the accident
occurred was formerly a part of the City Hall Park, the property of
the corporation of the City of New York. In November, 1847, the
city council ordered that the lower corner line of the Park be so
adjusted as to make a curve, instead of corners and angles, from
Broadway to Chatham Street. The execution of those orders, placed
in the street the ground where the plaintiff received his injury,
and it became a part of the sidewalk at that place.
It is now argued that this is not a street, because the land was
not condemned agreeably to a certain statute of the state for the
opening and widening of streets. This statute was intended to
secure to private land owners compensation for their property taken
for public uses, and can have no application to the case of an
appropriation by the city council, of land owned by the city to the
purpose of a street.
It is also said that the park is, both by contract and by
statute, pledged for the redemption of the city debt, and therefore
cannot be thus appropriated. It will be time enough to consider
this question when some creditor of the city shall raise it. The
legal title and the present use and possession are in the city, and
were when the land was converted into a street, and it does not lie
in the mouth of the city authorities, under these circumstances, to
claim exemption for their negligence in the manner of making this
conversion, under the plea that the act was a violation of their
duty to public creditors.
If the authorities of a city or town have treated a place as a
public street, taking charge of it and regulating it as they do
other streets, and an individual is injured in consequence of the
negligent and careless manner in which this is done, the
corporation cannot, when it is sued for such injury, throw the
party upon an inquiry into the regularity of
Page 71 U. S. 195
the proceedings by which the land became a street, or into the
authority by which the street was originally established.
2. The second error is supposed to have been found in an
exception to the following language of the court in the charge to
the jury:
"If they (the corporate authorities) leave an opening in the
sidewalk, which is sometimes done, and a person coming along in the
night falls into it, without any want of proper care on his part,
the defendants are liable for any injury that may be occasioned.
So, if an obstruction in the face of a sidewalk, over which a
person stumbles -- a box, if you please, left out on the sidewalk
on a dark night, or barrels, over which a person stumbles and falls
in the absence of want of care on his part -- the defendants are
equally liable for the injury. The opening, in the one case, and
the obstruction, in the other, constitute the negligence on the
part of the authorities who have control of the matter, and, in
order to escape from the charge of liability, the burden is thrown
upon them to disprove the negligence."
To this charge it is objected that it precluded the defendants
from any attempt to show that they were not guilty of negligence,
because, if the obstruction constituted the negligence, the
existence of the obstruction being proved, no defense could be
offered. But this is a verbal criticism not justified by the
language of the court, which in the same sentence declares that, in
order to escape from liability, the burden is thrown upon
defendants to disprove the negligence. No one can read the charge
without seeing that the jury must have understood the court as
meaning, that the existence of those obstructions was such evidence
of negligence as required of the authorities explanations in order
to escape liability.
Another objection to this charge is that it ignores the
necessity of notice to the authorities of the existence of the
obstruction.
It is certainly true, as a general proposition, that before the
corporate authorities can be held liable in this class of cases, it
must be shown that they knew of the existence of the cause of
injury, or had been notified of it, or such a state
Page 71 U. S. 196
of circumstances must be shown that notice would be implied. And
it is true that this charge makes no reference to notice whatever.
But when we look into the facts of this case, as shown by the bill
of exceptions, we discover a very plain reason why this was
omitted. The question of notice, as a fact, could not be disputed,
and therefore did not arise as a matter on which the jury required
instructions.
The city authorities, in converting the part of the park already
mentioned into a street, had cut down a tree, and left the stump
standing from six to eight inches above the surface, and from
fourteen to eighteen inches inside the curbstone, on the sidewalk.
This was done in 1847, and this stump, thus left by the city
authorities, who had cut down the tree, remained in that condition
until the time of the accident to plaintiff, in 1857.
These facts were uncontradicted, and stronger proof of notice
could not be given. It closed the question, and the omission in the
judge's charge of any reference to that subject was justified by
the testimony. It would have been superfluous.
Judgment affirmed.
