Stern v. . International Ry. Co. , 220 N.Y. 284 ( 1917 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The plaintiff, as administratrix of the estate of her husband, brings this action for the damages suffered through his death. She has obtained a judgment against three defendants, the International Railway Company, the city of Buffalo and the Windsor Motor Car Company. Her husband met his death in an automobile collision. The car in which he was riding belonged to the Windsor Motor Car Company, and was driven by one Fairman, its salesman and general manager. There is evidence that Fairman was driving negligently. He attempted to pass a car ahead of him, but gave no warning of his approach. The car ahead moved out into his path to pass a heavy mail wagon in front of it. To avoid collision Fairman swung his own car sharply to the left, and it collided with a trolley pole in the centre of the highway. Judgment has gone against the Windsor Motor Car Company on the ground that it is chargeable with the negligence of its servant. Judgment has gone against the International Railway Company and the city of Buffalo on the ground that the trolley poles were unreasonable and dangerous obstructions.

The collision occurred in Main street near its intersection with Florida street in the city of Buffalo. Main street in that neighborhood has a width of one hundred feet. Each sidewalk is twenty-five feet wide, and there is a space of fifty feet from curb to curb. The tracks of the International Railway Company, the successor of the Buffalo Street Railway Company, run through the centre of the street. Authority to lay them was granted by the legislature in 1866 (L. 1866, ch. 479). At first the cars were drawn by horses, but for many years the motive power has been electricity. A change of power was first authorized by the common council in 1889. The consent granted at that time affected that part of Main street between Cold Springs and Scajaquada creek, which includes the scene of this collision. The council did not prescribe the location of the poles, and the railway company placed them at the centre of the street in the space between its double tracks. The poles stand at intervals of one hundred and twenty-five feet. They are without the protection of curbstones or other guards. About the same time there was a like change of power in other streets and districts. A change was authorized in Niagara street in 1890. In that street the resolution of the common council imposes as a condition the use of centre poles unless the side pole construction is preferred by the abutting owners. In 1891 a change was authorized in another section of Main street, a section between Michigan and Ohio streets, south of the Cold Springs district. There the council required the side pole construction, unless the centre poles were preferred by the abutting owners. By that time centre poles had already been installed in the Cold Springs district, the scene of the collision, and they remained there without objection. The first suggestion of danger came in 1909. In December of that year a resolution was adopted by the council requiring the railway company to remove the "centre trolley poles now remaining in Main street between the Erie Railroad and City line, the same being dangerous to traffic in said street," and in February, 1912, a resolution similar in form required the removal of centre poles between the New York Central Belt line and the Erie railroad. Those parts of Main street are south of the scene of the collision. They are given over almost exclusively to business. Main street, where the collision occurred, is chiefly a residence district. In that district no change of the location of the poles has ever been ordered by the council, and none has been made. The trial judge told the jury that the railway company and the city were liable if poles located in the centre of the street were unreasonable and dangerous obstructions of the highway. Whether that ruling may be sustained is the first question to be determined.

The railway company had the right with the consent of the common council and the property owners to electrify its road (L. 1884, ch. 252, § 12). The consent of the council was obtained. The consent of the property owners, after all these years of acquiescence, must be presumed (Railroad Law, § 171). The poles, if placed and maintained with due regard for the public safety, are not unlawful obstructions. They are obstructions incidental to the exercise of a statutory right. The statute has not said, however, where the poles shall be located. The implied condition is, therefore, attached that they must be so located as to avoid unreasonable and unnecessary danger to travelers upon the highway (Cleveland v. Bangor Street Ry.Co., 86 Maine, 232; McKim v. Philadelphia, 217 Penn. St. 243; Lambert v. Westchester El. R.R. Co., 191 N.Y. 248, 252;Hill v. Mayor, etc., of N.Y., 139 N.Y. 495; D., L. W.R.R.Co. v. Buffalo, 158 N.Y. 266; Morton v. Mayor, etc., of NewYork, 140 N.Y. 207; Trustees Village of Canandaigua v.Foster, 156 N.Y. 354, 359; Brown v. Met. St. Ry. Co.,60 App. Div. 184, 186; 171 N.Y. 699; 21 Halsbury, Laws of England, title Nuisance, p. 520). Subject to that condition, the railway company, in the absence of express command by the municipal authorities, may place them where it will. In this part of Main street the city gave no command. The railway company was, therefore, free to make its own choice if the choice was not unreasonable. Freedom of selection it had, but not freedom without limits. We do not mean to say that to make out a breach of duty, it is enough to show that there was an error of judgment (Seibert v. Mo. Pac. Ry. Co., 188 Mo. 657). The question is not whether some other place is better. The question is whether the place chosen is so dangerous and the danger so needless that the choice becomes unreasonable. If danger in that degree is present, both the railway company and the city are charged with liability. The railway company is liable, because the poles are then a nuisance (Lambert v. Westchester El. R.R. Co., supra; Cleveland v. Bangor StreetRy. Co., supra). The city is liable because the nuisance is not abated (McKim v. Philadelphia, supra; Ring v. City ofCohoes, 77 N.Y. 83, 88).

The question, therefore, is whether there is any evidence that in April, 1912, when the accident occurred, the location of these poles was dangerous, and that the danger was unreasonable. When the road was first electrified in 1889, there were, comparatively speaking, but few trolley lines in this state. We may assume without deciding that the choice of centre poles rather than side poles, even though unwise, was, in those conditions and at that time, an error of judgment and no more. But in the years that have followed conditions have changed. The use of trolleys has become almost universal; the centre poles have been supplanted generally, though not everywhere, by side poles, placed upon the sidewalk; the automobile has changed the ancient modes of travel, and magnified the likelihood and dangers of collision. We think the jury had the right to find that with these changes the centre poles have become a menace to the traveler. That they were a menace in other parts of Main street the common council had itself resolved. It announced that judgment in 1909 and again in 1912. In each year the railway company received the resolution, and obeyed it. We do not overlook the suggestion that there was a difference of conditions. Main street at the points of change was narrower, it is said, than at the scene of the collision. Its width was forty feet instead of fifty. At the time of the resolutions, however, an order had been made to widen it. Evidently the centre poles were still felt to be a source of danger. There was also a difference, it is said, in the character of the neighborhood. One section was devoted to business; the other in the main to residences. But even in the residence section business had gained a foothold. We think that conditions, even though not identical, were similar to such an extent as to make the change of some significance. But aside from any admission implied in the defendant's conduct, the very location of the poles gives room for conflicting inferences. Plainly, there was at least some risk of accident; plainly, the risk was needless, whatever its degree; plainly, therefore, the inference of fault may be drawn unless the risk was so remote or trifling that reasonable men in the exercise of reasonable care would not have striven to avoid it. In the light of all the circumstances, we think that question was for the jury. We have the express admission of the city, three years before the accident, that in another section of the same street the poles had become a danger to public traffic. We have the railway's submission to the order, which found its justification in the danger (Wigmore on Ev. § 282; Stevens v. Boston El. R. Co.,184 Mass. 476, 478; C. A.R.R. Co. v. Eaton, 194 Ill. 441). We have the general disuse of centre poles in other cities, except where grassplots or other spaces in the centre of the street serve to subdivide the highway. And finally we have the growth in traffic during twenty years, the change in methods of locomotion, the added chances and dangers of collision, and the need, obvious without evidence, of freeing the space between curb and curb from obstructions which could be made without risk to serve their purpose elsewhere. We place our judgment, not on any of these circumstances singly, but on all of them collectively. Their cumulative weight, we think, makes possible the inference that the centre poles had become dangerous, and that the danger was unreasonable. That the city had no record in its claims department of any similar collision is not decisive. It was none the less alive to the danger. This is attested by the resolution of its common council. Whether claims had been made against the railway company, we do not know. It gave no evidence on the subject, and neither gains nor loses by its silence.

The defendants refer to cases in which a city planning an improvement has been held to be exonerated for errors of judgment in the plan (Urquhart v. City of Ogdensburg, 91 N.Y. 67;97 N.Y. 238; Owen v. City of New York, 141 App. Div. 217;Pitman v. City of New York, 141 App. Div. 670). A distinction has been drawn between affirmative approval, which will evidence a true exercise of discretion, and passive acquiescence, which may be merely a negligent omission to remedy an evil. The decision in Urquhart v. City of Ogdensburg, on its second hearing in this court, illustrates the distinction (97 N.Y. 238). Even in cases of express approval, the rule of exemption has been kept by later cases within narrow bounds (Ivory v. Town ofDeerpark, 116 N.Y. 476; Fitzgerald v. City of Binghamton, 40 Hun, 332; 111 N.Y. 686; Nicholson v. Town of Stillwater,208 N.Y. 203; Corcoran v. City of New York, 188 N.Y. 131;Kiernan v. Mayor, etc., of N.Y., 14 App. Div. 156, and cases there cited). We do not need to define them now. It is enough that the present case is not within them. These poles were not a municipal improvement. They were not planned and placed by the city. They were planned and placed by the railway. If their location was dangerous, and the danger was needless, they violated the implied condition of the franchise, and were in the highway without right. They were no more a municipal improvement than defective rails or slots (Schild v. C.P., N. E.R.R.R.Co., 133 N.Y. 446; Brown v. Met. St. Ry. Co., 60 App. Div. 184;171 N.Y. 699; Worster v. 42nd Street G. St. F.R.R.Co., 50 N.Y. 203). The municipal improvement was the street, which had long ago been opened. While it remained open, the duty of the city was to see that it was kept clear of dangerous and unnecessary obstructions which with reasonable care could be discovered and avoided. Error of judgment alone does not carry liability with it, for error of judgment alone is consistent with reasonable care. But failure to abate dangers which reasonable care would have revealed, will charge the city with liability, and this whether the form of action be negligence or nuisance (Trustees of Canandaigua v.Foster, 156 N.Y. 354; Uggla v. Brokaw, 117 App. Div. 586,591). "It cannot be held as a general proposition that a city may excuse itself from a charge of negligence as to the condition and care of its streets, merely by claiming that it acted judicially in determining to leave the street in a dangerous condition for public travel" (WILLIAMS, J., in Kiernan v. Mayor, etc., ofN Y, 14 App. Div. 156, 159).

Reliance is placed upon rulings that stepping stones, hitching posts, hydrants, shade trees and the like are legitimate obstructions (Robert v. Powell, 168 N.Y. 411; Dubois v.City of Kingston, 102 N.Y. 219; Wolff v. Dist. of Columbia,196 U.S. 152; Ring v. City of Cohoes, 77 N.Y. 83; Dougherty v. Village of Horseheads, 159 N.Y. 154; Jordan v. City ofNew York, 44 App. Div. 149; 165 N.Y. 657; City of Wellington v. Gregson, 31 Kansas, 99, 103; approved in 159 N.Y. 154, at 161). In some cases, as BREWER, J., points out in City ofWellington v. Gregson (supra), the courts dealt with the question as one of fact for a jury (citing 2 Dillon on Mun. Corp. § 1016). In other cases, exhibiting other conditions, they dealt with it as one of law. Always, however, the ruling was made, not absolutely, but relatively to particular conditions of location, of convenience or of necessity. We had occasion in Lambert v.Westchester El. R.R. Co. (191 N.Y. 248, 252) to emphasize that truth. There the cases that deal with stepping stones and the like were cited to exempt a street railroad from liability for so placing one of its trolley poles as to imperil the use of the highway. We put aside the citations as inapplicable, and held that the defendant's franchise did not authorize it to place its poles where they would "unduly and unnecessarily interfere" with the public right of travel (191 N.Y. at 252).

The point is made that if the centre poles were safe when first erected, the city could not compel them to be moved, though they later became dangerous. We are referred to our decision inPeople ex rel. City of New York v. N.Y. Railways Co. (217 N.Y. 310, 317), but we think it is inapplicable. There the attempt was made to compel a relocation of the tracks; and the location of the tracks was held to be of the substance of the franchise. The state might relocate them in the exercise of the police power, but not the municipality. Here the things to be moved are mere incidents or appurtenances; they do not affect the location of the right of way; and wherever they are placed, the franchise in its substance remains intact. This was recognized inPeople ex rel. City of New York v. N.Y. Railways Co. (supra). Judge COLLIN said: "The rights of a railroad corporation upon the parts of the streets appropriated to its use must be so exercised that the free use of the streets, for the purposes and in the modes inherent in their creation, will not be unreasonably interfered with. It is a part of the regulative power of the local authorities to secure such result."

The appeal of the Motor Car Company brings up the question whether Fairman, the driver of the car, was using it at the time of the accident in the business of his employer. As to that, enough was shown to make a question for the jury.

The judgment should be affirmed with costs.