Gubasko v. Mayor of New York , 12 Daly 183 ( 1883 )

Chables P. Daly, Chief Justice.

I think the case-should have gone to the jury. The judge at the trial held that no negligence was shown on the part of the city authorities. The tree, he said, was broken or split off by the shock it received from the truck; and-as it stood on the sidewalk, fifteen inches from the street, he did not think that he could hold that such a blow from the wagon was an exigency which, in the ordinary course of events, could be expected. This, I think, was a question for the jury and-not for the court, for it involved, in the first instance, a finding of facts in respect to which the evidence was more or less conflicting. This was the case with respect to the degree of force with which the tree was struck by the truck-

The driver said he did not even feel the force of the blow; that he did not know what had taken place until he heard some one shouting; that he was sitting on the timber with which the truck was loaded, and that the load was not a heavy one.

Miller said that the timber did not strike the tree with force ; that the wagon only slipped off the horse car track; the truck hit the tree hard, but that he did not take much notice.

Ennis, on the contrary, testified that the lumber struck the tree a pretty good blow—rather heavy: and the force of the blow was certainly to be considered in determining the extent to which the tree had become decayed or in such a condition as to impose upon the public authorities the obligation of removing it to prevent the possibility of injury to passers by should it be broken off and fall by a blow from a cart or other object.

Hogg, the expert, testified that it would take a blow equivalent to the force of fifty tons to break off a tree of its diameter if it was solid, and from the evidence as to the manner in which it was struck by the timber projecting from the end of the truck, he computed that it was struck with a force about equal to ten tons.

There was some conflict also as to whether the tree was broken off or merely split by the blow, and fell. Hernberg says it broke off about two feet from the sidewalk; but that he did not notice whether it was above or below a hole in it, which was three feet above the'sidewalk. Tripler speaks of it as having been broken off; whilst the defendant’s witness, Craig, says that it did not break off short; that he looked at the fallen tree, after the accident, and that there was a split in it, which extended about thirty inches on both sides. To this evidence of Craig’s, the expert Hogg attached some importance, for, in reference to it, he said: “ If a tree splits, it shows that the wood was very sound.”

There was doubt or uncertainty, moreover, in the evidence, as to the outward appearance of the tree. Reddy, when cross-examined, testified that before it fell it looked sound enough, but, on the re-direct, said that he did not mean to say that, when the tree was standing, before it fell, it presented a sound appearance on the outside. He gave this answer in reply to a question put, and then added— before the tree fell, it did not present a sound and healthy appearance. It stood up a bald and bare trunk, with no appearance of life or growth; as a lifeless, limbless, dead tree; and had been standing in that condition for six or seven years; and what weight was to be attached to all of the above evidence was for the jury, and not for the court, to determine; and even upon the uncontroverted facts, the question involved was one upon which different minds might come to a different conclusion.

It was an ailantus tree, which had been cut off at the top, with all the branches, about eight years before the accident, to make way for the building of the elevated railroad in the street, leaving a stump or boll of the tree standing to a height of about nine feet above the sidewalk. At the time it was cut off it was a vigorous tree, in full growth, that had been planted there many years before.

The expert, Hogg, testified that such a tree cut off at the top, in full vigor, would probably take ten, twelve or fifteen years'to rot away ; and in rotting, it would rot away from the top and gradually crumble off, or pieces might crumble off, but would not tumble down in a whole column, unless broken by a blow, or something of that kind, or by being pulled down ; and that, from the condition of the fragments shown him, he should judge that the decay in this stump was working downwards, the top part being more decayed than the bottom.

The police officer, who had been ordered, in 1876, to report all the dead trees, did not report this, because it had sprouts a foot or two long. He saw these sprouts in 1878, and saw the tree every day from that time to 1881, but did not see any shoots after 1878; and the expert, Hogg, testified that a large part of the tree might be dead, and a small portion might send forth shoots. That this stump, nine feet high, was, at the time of the accident, very much decayed in the interior, was shown by several witnesses, and instead of being limited to the top, this decay existed far down in the tree, and within three feet of the sidewalk; for, at that point, on the south side of it, there was a hole, thirteen inches in diameter and about five inches deep, which had been there for six or seven years. And it was in testimony that if a hand were thrust into this hole it would come out covered with dust. Reddy testified that it was clearly to be seen, on examination, that the inside of the tree was rotten, decayed. And Tripler said that outside the tree showed the bark and was not rotten, but that the inside of the tree was all gone; that it was all punk and dust; that when it fell it was a dead tree; that immediately after the accident he examined the fallen tree and found it very rotten.

Several of the defendant’s witnesses testified to its appearance before it fell. Ennis said that, from the appearance outside, it was a solid tree, only that the hole was there ; that if you looked at the tree it looked pretty solid, but that he never examined the tree; that all that he knew was that there was a hole on the south side of it. He could not tell how it looked inside, because it looked pretty good outside.

Glossy, who passed it four or five times a day for about thirty years, said that it looked sound to all outside appearance; but, though having passed it so frequently, he did not know that there was a hole in it such as has been described, and did not think there was; but added: “ I did not take much notice.”

There being conflict or uncertainty as to the facts, the case should have gone to the jury, for they alone could determine, under proper instruction, whether the condition of this stump of a tree nine feet high was such as to require the city authorities, in the proper exercise of that care of the public streets which the law imposes upon them, to remove it to prevent the possibility of accidents to passers by by the fall of it. It no longer served the purpose for which the tree had been planted—to shade the sidewalk in the summer. It was an unnecessary incumbrance after it had become a bare stump, and especially so in this part of Greenwich Street, which is in the business section of the city, close to the river and the Battery—an old and narrow street, being less than sixty feet wide, with sidewalks twelve feet wide, and a road or street way of only thirty-four feet in width—the use of which as a thoroughfare for carts, trucks and vehicles in that portion of the city has become more limited by changes that have taken place since the tree was planted, there being now a city railroad track through the street and an elevated railroad above it supported by posts or pillars from below. The driver of the truck, who was manifestly, from the testimony, free from all blame, testified that when he had to turn out to let the street car pass, the street at that point was narrow, and that there was not space enough for a truck, such a one as he drove, entirely on the outside of the railroad track; that he felt his wheel slide on that side of the street; that the rail of the track lies near the sidewalk ; that the track itself rises above the pavement, and that there is quite a gully between the track and the street, making it, as he said, “ hard for a truck; that it had to bend—slide along;” that he was striving to get out of the track as carefully as he could, and was not driving fast, which he could not do with such a load.

These circumstances—the peculiar condition of this part of Greenwich Street, the fact that what remained of the tree had been lifeless and dead for five or six years ; that it served no use or purpose to allow a lifeless stump of such a height to remain there ; that in the situation it was in it would naturally decay, and was at the time of the accident decayed in the interior, or as Tripler expressed it, “ that the inside was all gone, all punk and dust; ” that it split or broke off with the pressure of a loaded cart against it— presented the question, whether it was not the duty of the public authorities to have examined and known the condition of such a useless object in the street, for (jin the language of one of the witnesses) “ it was clearly to be seen on examination that the inside of the tree was rotten and decayed,” and to have removed it. The fact that it stood fifteen inches from the road bed of the street was regarded by the judge as a circumstance showing that a blow from a wagon was an exigency that, in the ordinary course of events, was not to be expected. But this was a point upon which different minds might come to different conclusions. It is not an unusual circumstance for carts in traversing the business streets of a city to have boards or timber projecting more than fifteen inches beyond the end of the cart or further, and as the space for turning a vehicle to enable a railroad car to pass in this particular part of Greenwich Street is very narrovr, such an exigency as a cart striking the stump does not appear to me to be one which in the ordinary course of events could not have been expected. It appears to me, on the contrary, that in view of the narrowness of the space and the positions of the track and of this stump, the possibility of a cart coming in collision with the stump in turning for a railroad car to pass was one that ought to have occurred to those whose duty it is to attend to the condition of the public streets, and who see or ought to know, especially in business streets, what is taking place in them in the transportation of merchandise to or from different streets, or to and. from the piers and wharfs; and as I find myself in this respect differing from my colleague, it shows that this is one of those questions that should be left to the twelve minds in the jury box, rather than to a single one upon the bench. It is a question which a jury composed of persons living in the city, and who are acquainted with the public streets and the daily use that is made of them', are quite as competent to determine as the court. Indeed, having this experience to aid them, their united and unanimous judgment in the disposition of such a question is, in my opinion, entitled to greater weight. For this reason, I think the case should have gone to the jury, under proper instruction, to determine whether the public authorities should not have examined the conditjj| of the stump ; or, if they had, should not have removed 5 b prevent the possibility of such an accident as in this case it was the cause of.

As matter of law it does not, in my opinion, come within the class of cases in which it has been held that the occurrence of the accident arose from one of those unusual causes which could not reasonably have been anticipated ; such as the breaking down of telegraph poles by a violent storm of unusual severity, as in Ward v. The Atlantic &c. Tel. Co. (71 N. Y. 84) ; or where' the proximate cause of the breaking down of a telegraph pole was not any insufficiency in the strength of the pole, but a collision caused by a runaway team of horses with a wagon attached, as in Allen v. The Atlantic Tel. Co. (21 Hun 22) ; or the heedless and unthinking rush of passengers, under great excitement, against the rail and stanchion of a steamboat, by Avhich the party injured was pushed through the gangway, the gate of which had been wrongfully opened by an unauthorized person, as in Cleveland v. The New Jersey Steamboat Go. (68 N. Y. 306) ; or the loss of a child, by his getting through the opening in the guard of a ferryboat and falling into the water, between the bridge and the pier, as forty millions of people passed annually over the ferries and no such accident had ever occurred as a person falling through the spaces in the guards, as in Loftus v. The Union Terry Co. (84 N. Y. 455).

In Hume v. The Mayor &c. of New York (74 N. Y. 264), it was held to be the duty of the city to have known that an awning which fell from the weight of snow upon it was held by the fastening of the rafters to the side of the building by what is known as toe nailing, an improper and insecure way of fastening, as the manner in which the awning was fastened was visible from the sidewalk; and for this neglect on the part of the city authorities, in that case, they were held responsible for an injury occasioned by the falling of the awning, because it projected over a part of the street, and was therefore subject to their supervision and controls

If thnFdegree of vigilance was required in that case as a matter of law, I think it was certainly a question in this case whether it was not the duty of the city authorities to know the state in which this dead and decaying stump was, which could have been easily ascertained by simply examining it. It was not like an occasional object in the street, or like the covering of a vault in the sidewalk carelessly left open. It was a permanent object that had remained for five or six years in the street, lifeless and dead, and which-during the whole of that time had a large hole in it. It served no public or private purpose to remain there, and-being naturally in a state of decay, in a narrow street in the business part of the city, where vehicles using the street as a thoroughfare had to make way for the regular passage of railroad cars, a fair question was presented for the judgment of the jury whether it was not the duty of the city authorities to have ascertained the actual condition of this stump of a tree, and if, upon examination, it was found to be in the state described by the witnesses, to have removed it. If it was as rotten in the interior as they testified, from the top- to within a few feet of the sidewalk, it was liable to be broken and fall, as it did, by the backing of a cart in that narrow space, or other object coming against it, and, being nine feet high, there was the danger that, by the sudden fall of so large an object, it might strike a person passing on the sidewalk.

Baron Pollock thought, in Greenland v. Chapin (5 Exch. 248), that the rule of law is that a person is expected to anticipate and guard against all reasonable consequences, but not against those which no reasonable man could expect to occur. And whether this did or did not constitute such an exception should, in my opinion, have beeh left to the judgment of the jury.

I think therefore that the judgment should be reversed and a new trial should be granted, with costs to the appellant to abide the event.

Beach, J., concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.