
    Walter M. Hunt, App’lt, v. The Mayor, Etc., of New York, Resp’ts.
    
      (Court of Appeals,
    
    
      Filed April 10, 1888.)
    
    
      1. Municipal corporations—Duty to keep streets safe—When liable FOR INJURY RESULTING FROM DEFECTIVE CONDITION OF.
    The duty cast upon a municipal corporation to keep its streets in a safe condition for travel is not absolute, so as to impose liability upon the corporation in every case where a traveler, without fault on his part, sustains injury from a defective street. The mere existence of a defect, from which a traveler sustains injury, does not independently o£ negligence establish a culpable breach of duty on the part" of a municipality.
    2. Same—Do not guarantee the streets absolutely safe.
    There is no absolute guaranty or undertaking on the part of a municipal corporation that its streets or other constructions shall at all times and under all circumstances, be in a safe and proper condition. Its obligation and duty extend only to the exercise of reasonable care and vigilance. There must be willful misconduct or culpable neglect to create liability.
    3. Same—Failure to prescribe proper regulations for the laying of steam: pipes in street-When evidence of negligence.
    Where the use of the street for laying steam pipes in, was expressly authorized by law, but the consent of the city to such use was required, on giving its consent, the city was empowered to prescribe reasonable regulations and conditions, under which the right granted should be exercised. An omission on its part to prescribe proper regulations for the use of the streets for that purpose, or to exercise proper supervision over the work, would render the .city liable for accidents attributable to such omission.
    4. Same—When not negligent for failure to prescribe proper REGULATIONS.
    The plaintiff was injured by an explosion in a manhole, constructed in one of the streets of the defendant city, in connection with the laying of certain steam pipes. There was no proof that the steam pipes were improperly located, or that a manhole was not a proper arrangement, or that there was any lack of care in conducting the work. The laying of steam pipes for the purpose for which these were laid, was a new enterprise. The evidence tended to show that such an accident, as in fact occurred; could not have been anticipated, and that there was no reasonable ground for apprehending any danger from the proximity of the steam pipes to the gas pipes. Held, that under such circumstances, the omission of the city to make a regulation prescribing the manner in which the steam pipes should be laid, furnished no evidence of negligence. That the city was exempt from the imputation of negligence.
    Appeal from a judgment of the general term of the superior court of New York city, affirming a judgment in favor of the defendant, entered upon an order dismissing the complaint.
    The plaintiff on the 27th day of January, 1883, while lawfully passing along Broadway, in the city of New York, was seriously injured by an explosion at one of the manholes of the American Heating and Power Company, at the junction of Broadway and Maiden Lane.
    The American Heating and Power Company was the assignee of the rights and franchises of the United States Heating and Power Company. Both corporations were organized under chapter 40, of the Laws of 1848, entitled “ an act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes,” and the amendments thereto. By chapter 317, of the Laws of 1879, power was given to steam heating companies organized under the act of 1848, or under any of the amendments thereto to “lay pipes or conductors for conducting hot water, hot air, of steam through the streets, etc., of any •city, village or town, with the consent of the municipal authorities of said city, town or village, and under such reasonable regulations and conditions as they may prescribe.” The act also provides that the permission of the municipal authorities shall only be granted on the condition that reasonable compensation shall be paid therefor, and a satisfactory bond given to secure the municipality against all damage in the use of such pipes.
    On the 16th of March, 1880, the common council of the •city of New York passed an ordinance granting permission to the United States Heating and Power Company, its heirs, •successors or assigns, to lay mains and pipes in the streets of the city, with such connections as may be required for the purpose of conveying water and steam to supply heat and power to the city and its inhabitants for domestic and other purposes, upon certain conditions specified in the ordinance. These conditions were that the company should furnish to the department of public works a map of the proposed work, and the position of the mains and pipes; •execute a bond to the city in the sum of $50,000 to protect the city against any accident that may occur under the permission given; furnish such heat and power as should be required for streets and public buildings at prices to be fixed by the board of estimate and apportionment; pay to the comptroller of the city in each year a sum equal to three ■cents for each lineal foot of mains laid, _ and two per cent, of the net profits for the year, and the city reserved to the •department of public works the right to change the position of the mains or pipes whenever they should interfere with free access to the sewers, mains and pipes belonging to the city.
    After the assignment by the United States Heating and power company of its rights and franchise to The American Heating and power company, the latter company proceeded under the permission given by the city, to dig in Broadway and the connecting streets in the lower part of the city, and laid down therein iron pipes for the purpose of conducting steam ‘‘and for the use and convenience of the company in so doing, the said company made a man-hole at the junction of Maiden Lane and Broadway, large enough to go down in from the surface of the street to the pipes, which were laid five or six feet under ground.”
    On the trial two witnesses were examined for the plaintiff, viz.: One Madden, acting superintendent of the Mutual Q-as Light Company, and one Culver, a city inspector of the laying of pipes of the steam companies in the city. Madden testified that the steam pipes were laid about two and a half feet below the pipes of the gas company; that the gas company had an inspector present all the time to protect its mains and service pipes, while the workmen of the heating ■company were excavating, and that he (the witness) was present very often for the same purpose, that the steam pipes were laid in boxes of wood in a composition of glass, lamp-black and other more or less non-conducting substances; that the digging interfered with the pipes of the gas company, and they had to be protected and held up by chains while the work was being done; that the gas company protected its pipes as well as it could, but after replacing the earth the gas pipes leaked. The witness further testified “he could not say there was anything wrong in digging out and replacing the earth, but he testified that after replacing the earth it did settle a good deal, and would have settled however well stamped; that in settling, it did displace the gas pipes, cause them to sag or go down, and shook the joints; everything was done that was possible to be done to prevent any sagging; after the steam was let in the steam pipes, the ground became very warm, and the lead in the gas pipes became very soft; that at the place where the manhole was, at the junction of Maiden Lane and Broadway, the steam pipes crossed the gas pipes, and there was a general meeting of all the steam pipes in this manhole. They run both ways or along both streets. The manhole was made of bricks and cement with two iron covers over it. When the explosion occurred, ■ this witness who was near by, went there immediately, and, finding a fire burning the wooden case of the steam pipes down in the manhole, went down and put it out.
    There was an explosion the day before from the same cause, where the steam and gas pipes met at the corner of Nassau and Fulton streets. That the American Heating and Power Company turned off its steam and abandoned its business and the pipes two or three days before the explosion occurred; but at the time of the explosion, the witness found the steam pipes there quite hot. Since then, another steam company has laid pipes along the streets, and used them and stiff uses them for the same purpose, and the witness has heard of no explosion since. Those pipes are laid differently. They are laid in a round wooden pipe-like box, and have sleeve or flange joints, whereas the others had ordinary screw joints, couplings and screws.”
    The witness Culver testified that he was water purveyor for the city, and was at the time of said explosion, general inspector of laying pipes for the various steam companies of the city; that he was at the scene of the explosion within ten minutes after it occurred.
    That he saw a large crowd of people; that the man-hole was blown out; that he did not see any steam escaping; that he looked into the matter further, and, of course, formed an opinion, although he had no definite knowledge; that he looked into the man-hole from the top. In reply to a question whether from the examination that he-made and his experience in laying pipes, and his knowledge of matters of that kind, he could tell the cause of the explosion, he answered that there could be only one cause that he could see; that, of course, he did not know that that was it, but the only cause that he could see for it was. an accumulation of an illuminating gas, which became, in some manner, ignited, and an explosion took place; that, that was his opinion; that further than that he had no knowledge, of course, but could not see that there could be anything else; that the gas accumulated in the man-hole of the heating company;, that he presumed that there was a. way to avoid such accumulation, but that was by filling the man-hole up; that if the man-hole had not been airtight, he presumed the gas would have escaped.
    In reply to a question whether, in his opinion, it would not have been the proper way to make the man-hole not-air tight, he replied that the accumulation of the gas was not expected, and that there was no means of knowing that the gas would accumulate: Previous to that time he had not advised the city to have the man-holes made with openings. He recommended it immediately after these explosions. There were two or three explosions which occurred together, and he thought there might be some reason for it. He investigated it, and formed his own opinion, and recommended that perforated covers be put on at once; and since that time there have not been any explosions.”
    The court, at the conclusion of the plaintiff’s evidence, dismissed the complaint. The plaintiff duly excepted. Judgment was entered for the defendant, which was affirmed by the general term.
    
      E. H. Benn, for app’lt; D. J. Dean, for resp’t.
   Andrews, J.

The fact of the explosion is itself a demonstration that the street was at the time in an unsafe and dangerous condition, and the only question is whether upon the evidence, the city is or may be liable for the injury suffered by the plaintiff. The duty cast upon a municipal corporation to keep its streets in a safe condition for travel, is not absolute, so as to impose liability upon the corporation in every case where a traveler, without fault on his part, sustains injury from a defective street. Its liability depends in all cases upon negligence, that is, upon the fact, whether it has omitted to exercise due care, under the circumstances, in their maintenance or reparation. The mere existence of a defect, from which a traveler sustains injury, does not, independently of negligence, _ establish a culpable breach of duty on the part of a municipality.

The cases of injuries from obstructions placed in streets by third persons without the consent of the municipality, of which it has no notice, are illustrations of the principle that the liability of a municipality for the unsafe condition •of its streets, rests upon the basis of negligence, and not upon an obligation assumed or imposed by law to keep the .streets at all times and at all hazards in an absolutely safe condition for travel.

Where an injury happens from the defect of a roadway itself, or from a dangerous condition of the street created by the act or consent of the municipality, negligence, as in the other cases mentioned, is the ground of liability. In the one class of cases, the conclusion of negligence may be Teached more easily than in the other, but the principle upon which the liability depends is the same in both, notwithstanding the difference in the circumstances. Where the defect is known, rendering the street unsafe and dangerous, the municipality is bound to be prompt and vigilant in remedying it. It is, at all times, bound to exercise due care that the streets are safe and free from ■dangerous defects, and that they shall not become unsafe or dangerous. To this extent its duty is absolute.

The language of the cases expressing the measure of duty resting upon municipal corporations in respect to its streets, sewers, etc., has not always been carefully guarded, but the doctrine has been frequently reiterated in this court that there is no absolute guaranty or undertaking on the part of a municipal corporation that its streets or other constructions shall at all times and under all circumstances, be in a safe and proper condition, and that its obligation and •duty extend only to the exercise of reasonable care and vigilance. McCarthy v. Syracuse, 46 N. Y., 194; Smith v. Mayor, etc., 66 id., 295; Ring v. Cohoes, 77 id., 83; Hubbell v. Yonkers, 104 id., 434, 5 N. Y. State Rep., 730. There must be willfull misconduct or culpable neglect to create liability. It follows that negligence on the part of the city was an essential element of the plaintiff's case, and it was incumbent upon him to establish it, or to give evidence from which it could be inferred, before he was entitled to have the question submitted to the jury. The use of the ■street for the steam pipes was expressly authorized by law. But the consent of the city to such use was required, and as on giving its consent the city was empowered to prescribe reasonable regulations and conditions under which the right granted should be exercised, an omission on its part to prescribe proper regulations for the use of the streets for that purpose, or to exercise proper supervision over the work, would, we think, justly render the city liable for accidents attributable to such omission.

The plaintiff did not rest his case on the mere proof of the happening of the accident, and it is unnecessary to consider whether in the absence of any evidence in the case beyond that, a presumption of negligence would have arisen which would have called on the city for explanation. See Curtis v. Rochester and Syracuse R. R. Co., 18 N. Y., 534.) The plaintiff proved the ordinance of the common council granting consent to the company to its use of the-streets for the steam pipes and also proved the manner in which they were laid; their location with reference to the gas pipes; the fact that after the explosion the wood box enclosing the steam pipes was found to be on tire; the leakage of the gas pipes, caused by the heat from the steam pipes, and their disturbance in the work of excavation, and also the opinion of the city inspector as to the cause of the explosion. It is insisted that the omission of the city to-prescribe the manner of laying the steam pipes and their location, or to take any measures to guard against an explosion, was an omission of duty which renders it liable. It is inferable that the work was prosecuted under the observation of the city inspector having supervision of the laying of .steam pipes in the city, that the agents of the gas company were present to protect the gas pipes, and used all practicable care to render them secure. There is no proof that the steam pipes were improperly located, or indeed that any different location was practicable, or that a man-hole was not a proper arrangement, or that there was any lack of care in conducting the work. The laying of steam pipes, for the purpose for which these were laid was a new enterprise. The evidence introduced by the plaintiff tends to show that such an accident as in fact occurred, could not have been anticipated, and that there was no reasonable ground at the time for apprehending any danger from the proximity of the steam pipes to the gas pipes. Under such circumstances the omission of the city to make a regulation prescribing the manner in which the steam pipes should be laid, furnishes no evidence of negligence. The experience furnished by the accident led to the changes in the forms of coverings for the man-holes and to the substitution of a different method of joining the sections of the steam pipes, which thereafter apparently prevented the occurrence of similar accidents.

But so far as appears, all the precautions which at the time seemed to be necessary, were taken to make the work safe and secure. The plaintiff has without fault on his part suffered a serious injury, but we think the evidence offered by the plaintiff, taken together, not only does not tend to show any negligence on the part of the public authorities, but rather to exempt them from the imputation of negligence.

' The judgment should therefore be confirmed.

All concur.  