Opinion
November, 1905.
Theodore Connoly [ Richard H. Mitchell and Addison B. Scoville with him on the brief], for the appellant.
Raphael Link, for the respondent.
The facts are undisputed in this case. The plaintiff was driving an automobile in a northerly direction along Crotona Park North (Arthur avenue, near One Hundred and Seventy-fifth street) on the 23d day of July, 1904, at about eight-forty-five P.M. His vehicle came in contact with a water gate or manhole which stood about twelve inches above the street level, and it is not disputed that the vehicle was damaged as claimed. There was no barricade about this obstruction, which was about twenty-four inches wide, and the evidence is such as to warrant the conclusion that there was no light displayed to warn persons lawfully upon the highway of the danger. This is sufficient to make a prima facie case, no doubt, but the defendant shows without dispute that Arthur avenue was being worked to a lower grade than had previously prevailed, and that this work left the water gate or manhole sticking up about twelve inches above the new grade; that this was the only obstruction in the highway, and that the defendant's foreman, one Flanagan, had shortly after five o'clock in the evening of the day of the accident properly filled and lighted a red lantern and placed the same upon the manhole, fastening it there with three cords; that on the following morning he went there for his lantern and found that it had been taken away. The witness testified that he had been the foreman of the department of highways for eight years; that it was not customary to close a street where there was but a single obstruction, and that the light which he placed upon the manhole was the kind of a light which he had been accustomed to place under similar circumstances, and that in his experience of eight years he had never lost a lantern before.
Under this state of facts we fail to discover that the defendant had failed in the discharge of any duty which it owed to the plaintiff. It clearly was not necessary to close a public highway to travel because of a single obstruction; the obstruction would not have been less dangerous if it had been barricaded, and it was the absence of a light, assuming due care on the part of the plaintiff, which was the proximate cause of the accident. But it is undisputed that the defendant had placed a proper light upon the obstruction at five-fifteen P.M. of the day of the accident, and the contact with the obstruction occurred at eight-forty-five P.M. There is no evidence to show that the city had any actual notice of the fact that the light had been taken away, and it seems clear to us that it had a right to assume that a light placed in the highway for a lawful purpose would not be removed. If the light had remained where it was placed it can hardly be doubted that the city would be free from the imputation of negligence if the plaintiff had run his vehicle upon the obstruction, and as the city had performed the duty of properly placing a light, it belongs to the plaintiff to show that the city had actual knowledge of the absence of the light before the happening of the accident or he cannot recover. This is clearly the doctrine of Parker v. City of Cohoes (10 Hun, 531; affd. on opinion below, 74 N.Y. 610), as well as of many other cases which it is not necessary to cite.
The judgment appealed from should be reversed and a new trial ordered, costs to abide the event.
JENKS, RICH and MILLER, JJ., concurred.
Judgment of the Municipal Court reversed and a new trial ordered, costs to abide the event.