Rupert v. Town of West Seneca , 293 N.Y. 421 ( 1944 )

On August 16, 1938, Lorraine Rupert, who resided with her husband at 90 Bellwood Avenue in the Town of West Seneca, Erie County, was injured by a fall due to a defective sidewalk near the northwest corner of Bellwood Avenue and Seneca Street. She brought an action for her injuries and her husband sued to recover expenses in caring for his wife and for loss of services. After a jury trial and a verdict for plaintiffs, judgment was entered against the Town of West Seneca. On appeal, the Appellate Division stated in its order that the findings of fact had been examined and affirmed (Civ. Prac. Act., § 602) but reversed, by a divided court, the judgment on the law and dismissed the complaint "on the ground that section 215 of the Highway Law relieves the defendant Town of West Seneca from liability."

No motion was made by the defendant for a direction of verdict in its favor. There was ample evidence, as the Appellate Division unanimously affirmed, from which the jury were authorized to find that Lorraine Rupert was free from negligence contributing to her injuries and that the sole proximate cause of her accident was the defective condition of a sidewalk furnished for the use of pedestrians using the public highway and upon which she fell. In that view of the case, the verdict must be reinstated unless, under the facts and circumstances here existing, section 215 of the Highway Law bars recovery.

The Town of West Seneca is and has been since its organization a municipal corporation. Bellwood Avenue was a public highway fifty feet wide laid out and maintained by the Town of West Seneca prior to 1911. It extended from Graham Street on the north end to and across Seneca Street at the south. Prior to that year it was and continuously since has been located in a residential section, dwellings were erected on both sides of the street and it was generally used for both pedestrian and vehicular traffic. Sidewalks were constructed on both sides. The center of the street had a twenty-foot pavement for the use of vehicles which the town constructed and maintained.

During 1912 and 1913, Union School District No. 3 constructed the first section of a public school building on a lot which it owned on the northwest corner of Bellwood Avenue and Seneca Street, made an addition to the building in 1922, and a further addition in 1928. The lot on which the school was located faced 195 feet on Bellwood Avenue and 111 feet on Seneca Street and was enclosed by an iron fence on the lot lines as laid out by the town. As part of the school building and improvement program, the school board entered into a written agreement on July 14, 1913, with one George F. Fischer, under the supervision of the board, to construct a new concrete sidewalk, four feet wide, within the highway and along the street sides of the school property at the expense of the School District. In 1927, a contractor, when delivering material for the school addition, wrecked a small portion of the sidewalk and repaired it at no expense to the School District. So far as appears, no other repairs were ever made to the walk. There was evidence that other improvements were made and maintained within the street limits by the town. It was on that walk that the accident occurred. The court charged that as matter of law sufficient time had elapsed after the construction of the sidewalk so that the town board was presumed to have notice of its existence.

At the time of the construction of the sidewalk, the town superintendent of highways was charged with the care and superintendence of town highways and with the duty to keep them in repair and free from obstructions and with inspection thereof during the months of April and October in each year and was authorized to employ persons with means to enable him to perform the duties thus imposed (L. 1909, ch. 30, § 47). Section 74 of the same act made the town liable for all damages to persons or property sustained by reason of any defect in its highways existing because of the neglect of the town superintendent in the performance of the duties imposed upon him. Similar powers and duties had long prior to that time been imposed upon the town officer in charge of the highways of the town for whose negligence in the performance of such duties the Legislature imposed liability on the town (Snowden v. Town of Somerset,171 N.Y. 99) and it could not be relieved from such liability merely because some duty of repair might also be imposed upon abutting owners (Ferguson v. Town of Lewisboro, 213 N.Y. 141,146). It is presumed that the town superintendent performed the duties imposed upon him by the Legislature and by the required inspection, if not otherwise, knew of the construction of the sidewalk by the school board and that the town consented thereto. Not only was there nothing to indicate that the town had surrendered any jurisdiction, supervision or control over any part of the highway or over its entire width, but it had no power to do so as against the public who were authorized to use the highway. The Legislature since 1909 not only has not modified or curtailed the powers granted to and duties imposed upon town superintendents of highways with respect to the control, maintenance and supervision of town highways or the obligations of towns to respond in damages for negligent failure of the town superintendents to exercise those powers or perform those duties but has by specific acts continued them (Highway Law, §§ 140, 215; Town Law, § 32). The entire width of the street, including the part on which the sidewalk was located, was a public highway and under the control, superintendence and regulation of the same town authorities (Highway Law, § 215 (formerly § 74), § 140 (formerly § 47); 37 Cyc., p. 12, et seq.; 39 C.J.S., pp. 909-918; People v.Meyer, 26 Misc. 117; Schell v. Town of German Flatts,123 App. Div. 197; Anderson v. Van Tassel, 53 N.Y. 631; seePeople v. County of Westchester, 282 N.Y. 224, 228) and was recognized and treated as such by the defendant Town.

By chapter 266 of the Laws of 1936, the Legislature added to section 215 of the Highway Law the words, "but it shall not be liable for damages to persons or property sustained by reason of any defect in its sidewalks unless such sidewalks are constructed or maintained by the town or the superintendent of highways of the town pursuant to statute, * * *." That addition to the statute furnishes no relief to defendant since the sidewalk on which the accident happened, on the record here, was presumably constructed with the consent of the town superintendent and necessarily, under legislative mandate, was maintained under his supervision, authority and control. Presumably, through long continued, public and notorious use and enjoyment of the sidewalk, the Town recognized it as a completed part of the public highway and accordingly must be deemed to have maintained it within the meaning of section 215 of the Highway Law. It was the duty of the town superintendent, for whose neglect in the performance thereof the town was still liable, to inspect the highway and to maintain it in a reasonably safe condition for the use of travelers who were entitled to use it. Where a walk in a dangerously defective condition for the use of the public was allowed to stand within the limits of the highway, it was the duty of the town superintendent of highways either to repair or remove it. The town superintendent, after 1936, could not shake off the mandatory duties imposed by the Legislature merely by failure to perform them and the town could not thereby assert that it was within the protection of the exception contained in the 1936 amendment by the mere failure of the town superintendent to perform those duties imposed upon him long prior to and at the time of the accident. There is nothing in the amendment of 1936 to section 215 of the Highway Law that grants immunity to a town from liability for neglect of the town superintendent with reference to the duties imposed upon him as to control, supervision and maintenance of the town highway throughout its entire geographical limits as so defined. The court correctly charged the jury in accordance with the foregoing principles of law.

In the circumstances in the record of this case, for injuries sustained by a traveler through no fault of his own, the town is liable if the proximate cause of the injuries is the neglect of the town superintendent in failing to keep the highway in suitable condition and repair or in failing to require the removal or repair of the defective condition after adequate notice. (Highway Law, § 215 (formerly § 74); Gaynor v. Town ofHempstead, 153 Misc. 321; Robinson v. Chamerlain, 34 N.Y. 389; Sewell v. City of Cohoes, 75 N.Y. 45; Saulsbury v.Village of Ithaca, 94 N.Y. 27; Pomfrey v. Village ofSaratoga Springs, 104 N.Y. 459; Ivory v. Town of Deerpark,116 N.Y. 476; Embler v. Town of Wallkill, 132 N.Y. 222;Bryant v. Town of Randolph, 133 N.Y. 70; Flansburg v. Townof Elbridge, 205 N.Y. 423, 428).

The judgment appealed from should be reversed, with costs in this court and in the Appellate Division, and the judgment of the trial court reinstated.

LEHMAN, Ch. J., LEWIS, DESMOND and THACHER, JJ., concur with CONWAY, J.; RIPPEY, J., dissents in opinion in which LOUGHRAN, J., concurs.

Judgment affirmed.