
    *Davenport v. Ruckman et al.
      
    
    
      Municipal corporations.—Responsibility for negligence.— Contributory negligence.
    
    A municipal corporation is liable for an injury sustained in consequence of its neglect to keep the sidewalks in repair; and so is a property-owner, who permits a passage-way to remain in a dangerous condition.
    A person whose sight is defective, but who is able to walk the streets with a reasonable assurance of safety, has a right to assume that the sidewalk is kept in proper repair; she is not guilty of concurrent negligence per se, in going into the street; and if injured by falling into an excavation in the foot-way, the question whether defect of sight rendered it imprudent for her to walk without an attendant, is for the jury.
    
    Davenport v. Ruckman, 10 Bosw. 20, affirmed.
    Appeal from the general term of the Superior Court of the city of New York, where a judgment had been rendered upon a verdict in favor of the plaintiff. (Reported below, 10 Bosw. 20.)
    This was an action by Clara A. Davenport against Elisha Ruckman and the Mayor, Aldermen and Commonalty of the City of New York, to recover damages for injuries sustained by the plaintiff, in falling into an excavation made in the sidewalk of a public avenue, in the city of New York, and not sufficiently guarded, in front of a building on such avenue, of which the defendant Ruckman was the lessee.
    It appeared on the trial, before White, J., that the excavation in question was below the level of the pave-, ment, extending, on the sidewalk, six feet in front of the line or side of the street, with descending steps to a cellar-way, in the front wall of a building. It was not covered or railed in, at the time of the accident, and' had been in the same condition for some time previous. It had been once inclosed by wooden doors, and at another time, by an iron railing, which had long previously been removed. *The defendant Ruck-man did not make the excavation, but was the assignee of a lease for twenty-five years of the premises behind it, into which the steps in it led, and, by such lease, owner of the buildings to be erected during the term. They were occupied, at the time of the accident, by one Lamb, a sub-tenant, for whom he had agreed to put the premises in repair. The defendant Ruckman never repaired the premises, was frequently there to collect his rents, and paid his own. The plaintiff’s organs of sight, at the time of the accident, were affected by disease, so as considerably to diminish her powers of vision, yet she could distinguish persons and colors, and objects having a “ distinct outline.”
    At the close of the testimony, there was a motion for a dismissal of the complaint, which was denied, and an exception taken.
    The counsel for the city of New York requested the court to charge the jury, inter alia, in reference to the duty of the corporation; 1. They were not bound to see that such an opening as that into which the plaintiff fell, was closed in the daytime. 2. They were not bound to see that the streets were in such a condition as to be safe for a blind person to pass without a guide. 3. They were not liable, unless the opening into which the plaintiff fell was of such a character as to have been dangerous to persons in possession of their sight, and exercising ordinary care.
    And in reference to the conduct and negligence of the plaintiff: 1. She was bound to use more than ordinary care in passing along the sidewalk. 2. It was negligence for her to walk upon the sidewalk, without a guide, if she wa9 unable to determine for herself whether it was free from obstructions or excavations.
    *The counsel for the defendant Ruckman requested the court to charge the jury, in substance, among other things, in reference to his liability for the injury to the plaintiff: I. That he was not in possession of the premises at the time, but his tenant, Lamb, was, who had been so for six days before the date of the lease to him, and was bound by his lease to keep the premises in repair. 2. That Lovett or Mitchell owned them in fee. 8. That the defendant knew nothing of the removal of a railing adjoining the excavation in question, and was prevented from repairing by Lamb. And also, in reference to the condition of the excavation, that the plaintiff could not recover, unless a person, with ordinary vision, using ordinary care and prudence, passing along the sidewalk in broad daylight would be unsafe or liable to be injured from the unsafe condition of the area. And lastly, that the plaintiff was guilty of negligence in going into a public street, in her condition.
    The court instructed the jury as to the duty of the corporation in reference to excavations of this kind, that it was “their duty to see that places of that description were kept in a safe conditionthere was, in the ordinance passed by them, “an implied permission to construct them in the manner prescribed,” and when made with such permission, they are “ responsible for injuries necessarily resulting from them;” “it is their duty to see that such places are maintained in a proper and safe condition,” and', in reference to their being chargeable with notice of-“the dangerous condition of any such opening,” that, “ if it had been a recent occurrence, * * * an express notice of some kind to them would be required, but where the dangerous condition of the street or sidewalk has continued for a long space of time, such express notice is not necessary.” They “may reasonably be presumed to have become acquainted with the condition of the street in this particular.” They have “ample means and every facility secured to them for fulfilling their duties, and seeing that all dangerous places in the public streets are *properly guarded; they are bound to fulfil that duty, and, if they neglect it, are to be held responsible.”
    In reference to the plaintiff’s negligence in going into the street unattended, in the actual condition of her organs of sight, the court charged the jury, “ that the circumstance that she was partially blind, and fell into this opening in the day-light, was not of any importance.” The question was, “ whether it was so improper and imprudent for the plaintiff to. have gone into the street unattended, in her then condition of sight, that it would be negligence on her part to do so.” But if she “possessed sufficient sight to give her a reasonable assurance that she might travel the streets safely, while they were in a good and proper condition, in the condition in which the defendants were bound to maintain them, she would not he guilty of negligence in going abroad unattended. The assumption in law must be, that the streets are in good condition, and the question to be determined by the jury,” was, “Had the plaintiff sight enough to go with reasonable assurance of safety through the streets,” if they were kept in good condition ? To these instructions the defendants’ counsel excepted.
    The court also instructed the jury, that the defendant Suck man was to be considered the owner of the house, and it was “ his duty to provide proper guards for the opening, and see that it was safely kept.” To which the defendant Ruckman’s counsel excepted.
    The jury rendered a verdict in favor of the plaintiff, for his damages, and the exceptions taken on the trial were directed to be heard, in the first instance, at the general term, judgment to be suspended in the meantime. The general term overruled the exceptions, and gave judgment in favor of the plaintiff upon the verdict; whereupon, the defendants appealed to this court.
    
      Anderson, for the appellants.
    
      Tracy, for the respondent.
    
      
       Also reported in 5 Trans. App. 254.
    
    
      
       Peach v. Utica, 10 Hun 477. Bor a learned article on this subject, seo 29 Am. L. Reg. 507.
    
   Hunt, C. J.

jury have determined in favor of the- plaintiff, both the question of the negligence of the defendants, and the absence of negligence on the part of the plaintiff. There were sufficient facts in evidence to warrant the submission of these questions, and, if the legal propositions *were properly decided by fthe court, the judgment must be affirmed.

It is insisted, that, under the circumstances indicated, the corporation of the city of New York has been guilty of no negligence. In other words, that it has no such absolute duty laid upon it, of repairing the streets, as to render it subject to an action for its neglect; that this duty is modified by the fact, that it resides in them, as a political power, and that the corporation is endowed with a large discretion as to the expediency of making such repairs. This suggestion is not new; it has been before argued in this court, and distinctly decided in the negative. The cases of Hutson v. City of New York (9 N. Y. 163); Conrad v. Trustees of Ithaca (16 Id. 158); West v. Village of Brockport (Id. 161); and Congreve v. Smith (18 Id. 79), settle the liability beyond farther discussion, whether the injury arises from some act done by the corporation, or from an omission of duty on their part.

The appellants further insist, that the plaintiff should have been nonsuited, on the ground that she was, herself, guilty of negligence, in walking through the streets unattended and nearly blind. In this connection, may also be considered, what, it is insisted, was error in the judge’s charge on this branch of the case. It appeared from the evidence, that at and previously to the time of the occurrence of the accident, the plaintiff was suffering from amaurosis, or paralysis of one of her eyes, and the power of vision of both eyes was impaired. She could not distinguish the features of those she met, but she knew that they were persons walking, and, a short time before the injury, she had been able, as it was testified, to distinguish the color of the coat worn by her physician, and she was in the daily habit of walking the streets as she had occasion. Contradictory evidence was given as to difficulties she met with in the street, on the same day of the accident, and before its occurrence. It was for the jury to ascertain the truth on that subject. The judge informed the jury that the circumstance that this person was partially blind, and fell into this opening in the day-light, was of no importance, and that it was not important *that such a distinction should be made in the present instance; he adds, the question is this: “ Whether it was so improper and imprudent for Miss Davenport to have gone into the street unattended, in ■ her then condition of sight, that it would be negligence upon her part to do so, sufficient to prevent her from recovering compensation for an injury she might sustain from the negligence of others, while travelling or passing along the streets.” This was the precise question to be determined by the jury, and, I think, should have been submitted as a question, of fact, and that it was fairly submitted in the above proposition.

The streets and sidewalks are for the benefit of all conditions of people, and all have the right, in using them, to assume that they are in good condition, and to regulate their conduct upon that assumption. A person may walk or drive in the darkness of the night, relying upon the belief that the corporation has performed its duty, and that the street or the walk is in a safe condi=> tion. He walks by a faith justified by law, and if his faith is unfounded, and he suffers an injury, the party in fault must respond in damages. So, one whose sight is dimmed by age, or a near-sighted person whose range of vision was always imperfect, or one whose sight has been injured by disease, is each entitled to the same rights, and may act upon the same assumption. Each is, however, bound to know that prudence and care are in turn required of him, and, that, if he fails in this respect, any injury he may suffer is without redress. The blind have means of protection and sources of knowledge, of which all are not aware; but we are not called upon to give any opinion upon a case of total blindness.

The plaintiff could see persons and could distinguish outlines. If a post had obstructed her path, the jury might well have said, upon this evidence, that she would have seen and avoided it. Whether a hole in the ground could be distinguished by her and avoided, was for them to say; and whether her power of sight was sufficient to justify her in walking the streets alone, was eminently a question for them. “A reasonable assurance of safety,” in passing through the streets, when in good condition, as submitted by the judge, *was a fair test of capacity. That which is assured, is made certain, secure or fixed, and no better standard could be presented than a reasonable certainty of safety in using the streets. (Sheridan v. Brooklyn and Newtown Railroad Co., 36 N. Y. 39; Ferris v. Union Ferry Co., Id. 312; Renwick v. New York Central Railroad Co., Id. 132; Ernst v. Hudson River Railroad Co., 35 Id. 9.)

I see no objection to tbe rulings of law in regard to the liability of the defendant Ruckman. Pie was the owner of the house, and had allowed the cellar-way to become and to remain in a dangerous condition. He had recently sublet the premises to one Lamb, who entered into possession a few days before the trial. It was in a dangerous condition when he put his tenant in possession. This did not operate to relieve the defendant from his liability; it simply added another party’to the negligence. As between those parties, Ruck-man was the principal, as it appears by the lease and by the testimony, that he agreed to put the premises in repair, but had failed to do so. (Congreve v. Smith, supra; Dygert v. Schenck, 23 Wend. 446.)

Both the defendants were liable to the plaintiff for her damages, and there is no objection to their being joined in one suit. The judgment should be affirmed with costs

Judgment affirmed.  