
    JASPER P. ROE, Respondent v. THE MAYOR, &c., OF THE CITY OF NEW YORK, Appellant.
    
      Negligence—Municipal corporation—Duty as to keeping coverings in street, after adoption, in repair—Injuries resulting from causes for which the defendants are responsible, the danger from which is enhanced by causes from which alone no liability would attach, liability for—Expert testimony as to effect of rain on streets of much traffic, admissibility of-— Charge, requests to refused, exceptions when too general.
    
    Conceding that the selection by a municipal corporation of a covering for a gutter in a street which was likely, beyond doubt, to be dangerous and unfit for travel on it, was a proper use of its discretion for an error in the exercise of which it would not be liable, yet after having selected such covering it is bound to keep it in repair and good order, and is liable for any injuries resulting from the neglect of that duty.
    If such covering becomes worn and smooth so as not to furnish a safe foot-hold and to be dangerous to those stepping on it at all times, and especially if it be wet and muddy, the fact that an injury results from the conjoint causes will not relieve the corporation from liability therefor.
    An officer of the weather bureau was asked as to the effect of such a rain fall as he had previously described upon a New York street of much traffic, the evidence was excluded, held no error.
    When the court in its charge correctly refers to some parts of those requests to charge which it had refused, and had made it unnecessary to charge other parts by the way in which it described the legal liability of the requestant, an exception without specifying any particular omission is too general.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided January 7, 1889.
    Appeal from judgment entered on verdict for plaintiff and from order denying motion for a new trial made upon the minutes.
    After the close of the testimony on both sides and before the judge charged the jury, defendant submitted the following requests to charge :
    
      1. The city of - New York is not the insurer of the safety of the public streets, and is- compelled by law to do no more than take reasonable care of the same.
    2. The city has, in law, the right to determine the particular kind of pavement which shall be used for its streets and sidewalks; and it is, therefore, not for the jury to say whether stone, iron or wood be safest or best for such purpose.
    3. There is no obligation assumed or imposed by law upon the city to keep its streets at all times and at all hazards in an absolutely safe condition for travel; the liability, therefore, of the city, so far as this case is concerned, and in all cases of a like nature, depends upon the fact whether the municipality has exercised due care under the circumstances in the maintenance or reparation of the streets. 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 the municipality.
    4. The jury, therefore, must not assume in this case, that because the iron plates, or some of them, used as gutter coverings, have worn smooth “ here and there,” that any responsibility or liability thereby necessarily attaches to the municipality.
    5. The omission of the city authorities to provide an underground sewer at Washington and Warren streets, for the purpose of carrying off the water from the street, furnishes no evidence whatever of negligence.
    6. There being no evidence whatever of consequential damages, the value of the horse alone, testified as being 13 50, is all plaintiff can recover.
    Thereupon the judge charged as follows:
    The plaintiff alleges that on the 3d of October, 1887, a horse belonging to him was injured through negligence of the defendant, and without any negligence on the part of the plaintiff or of his servants.
    The defendant denies that plaintiff’s horse was injured through its negligence; and it also denies that it was injured without negligence on the part of the driver of the horse.
    The first question, then, that you will determine is, was the horse injured, without negligence on the part of the driver of the horse ? And the next question is, was he injured through the negligence of the defendant. By the defendant, I mean the corporation of the city of New York and its servants.
    If you come to the conclusion that the horse was injured without negligence on the part of the driver of the horse, and through the negligence of the defendant, the city of New York, then you will ascertain what was the value of the horse.
    It is the duty of the city of New York to keep its streets in such a condition that persons may travel through them without injury to life or limb, not only in fair weather but also in rainy weather. But the corporation is not an insurer of the safety of those who use the streets. It is bound only to exercise a reasonable degree of care and diligence through its appointed officers ; and if it has exercised that reasonable degree of care and diligence, and then an accident should happen, still it is not negligent.
    The corporation of the city of New York is bound, when it has received notice that there is a dangerous place in one of the streets, to remove that danger within a reasonable time. And the corporation is also bound to loóle, on its own account, to see whether there are dangerous places in the streets.
    Now, the negligence of the corporation, if it be negligent, in this case consists in the fact that it either failed to repair this defective place, if it be a defective place, after it had received notice of the defect, or that it allowed it to remain in the defective condition for so long a time that it was negligent in not finding out that there was such a defect there. In other words, its negligence in the last view would be what the lawyers call constructive negligence—negligence because it failed to exercise due care in ascertaining whether or not there was a defect in the streets.
    You have heard the testimony as to this point, and it becomes material then, for you to ascertain how long the street was in a defective or dangerous condition, if it be a dangerous condition. And if you find that it had been in such a condition for months or years prior to that time—prior to the third of October—then you would be authorized in saying that the city was negligent in not repairing it.
    If the plaintiff is entitled to recover at all, he is entitled to recover only the value of the horse. That value, I believe, has been fixed by the experts at §330 or §350. You may find, if you conclude that the plaintiff’s property was injured without negligence on his part and through the negligence of the defendant, in any sum up to §350, but as I told you, you can find against .the city only if you come to the conclusion that this was a dangerous place, and also if you come to the conclusion that it remained there for so long a time that the city was negligent in not repairing it.
    The other requests I refuse to charge.
    At the conclusion of the charge defendant’s counsel excepted as follows : “ I except to your honor’s charge and to the refusal to charge my requests, other than the first and sixth; said first and sixth having been charged.”
    The other facts sufficiently appear in the opinion.
    
      George F. Murray, attorney and of counsel for respondent, argued:—
    I. The exception to the exclusion of the expert testimony is untenable. The witness was not shown to be an expert regarding the streets of New York, and if he were, the subject of inquiry is the effect of rain on this particular locality and on these very plates.
    II. It is not deemed necessary to examine with particularity the several propositions which defendant sub.mitted. The presiding judge charged favorably for defendant, and gave the jury accurate and full instructions about the law applicable to the facts as developed. This is true respecting each of the proposed requests of defendant. It is not the province of the trial judge to lecture upon the general doctrine of the rights and duties, in negligence cases, of municipal corporations when he is delivering his charge. He acquits himself of his whole obligation when he tells enough to the jury about the law which fits the relevant facts to keep them from going astray.
    III. Defendant tried this case on the theory that Urquhart against the City of Ogdensburg, 91 N. Y. 71, applied to the facts. It is unnecessary to adopt or dispute the doctrine of that case. In effect we accept it unreservedly. It is undoubtedly true that, as is stated, “ the rule is well settled that where power is conferred on public officers or a municipal corporation to make improvement.....the duty to make them is quasi-judicial or discretionary, involving a determination as to their necessity, requisite capacity, location, etc., and for a failure to exercise this power, or an erroneous estimate of the public needs, no civil action can be maintained.” What the plaintiff complains of in this case, and what the jury have found to be the fact, is that the defendant allowed the crossing to fall into disrepair, to get into a condition in which by reason of the want of repair it was not reasonably safe for traffic. That being the case, the plaintiff himself could have no better support than this very case of Urquhart, and the cases, Hines v. City of Lockport, 50 N. Y. 238; Mills v. The City of Brooklyn, 32 IV Y. 489; Saulsbury v. The Village of Ithaca, 94 N. Y. 27; Requa v. City of Rochester, 45 N. Y. 134.
    
      Henry R. Beekman, counsel to the corporation, and W. Hartwell of counsel for appellant, argued:—
    I. The complaint should have been dismissed because, as matter of law, the city cannot be held liable for the use, or toleration of the use, of a particular species of pavement for its streets, or what amounts to the same thing, cannot be held liable for the obviously natural consequence and logical result of such a use. No responsibility or liability should attach to the municipality in the case at bar, because of the smoothness and consequent slipperiness (when wet) of a material such as iron when used as a pavement. The adoption of this material by the municipal authorities as a pavement for a portion of Washington and Warren streets was an act entirely within their discretion, and there can be no question but that the charter makes them the sole judges on this point. Subd. 9 of section 86 of chapter 410, Laws of 1882; Lansing v. Toolan, 37 Mich. 152; Urquhart v. Ogdensburg, 91 N. Y. 71; Dillon on Mun. Corp., § 751 (3d ed.) In the case at bar no questions of fact as to the repair or disrepair of the gutter-coverings in question arise upon the testimony except in the most strained and narrow construction of it. The iron plates were admittedly unbroken and in their places. The fact that certain witnesses for the plaintiff testified that the plates were worn smooth here and there, or the fact that rain and mud, ex necessitate, made them slippery, as the witnesses on both sides admitted, but sustains the proposition contended for in this brief : that if the city had the right to use iron it was not bound to insure it against a purely incidental feature. Nor would the fact testified to, that when the plates were originally put down they were roughened by being cut in squares, prevent rain or wet mud from rendering them slippery even at the outset. To give the case to the jury, in such a condition of the testimony, except with the most careful instructions as to discrimination, was but to tempt them to usurp the province of others, and was at variance with well established rules of law. Under the above cases and that of Walter M. Hunt v. Mayor, etc., of New York, 109 N. Y., 134; it was error for the court at trial term in the case at bar to refuse to charge as requested that: “ The omission of the city authorities to provide an underground sewer at Washington and Warren streets for the purpose of carrying off the water from the street, furnishes no evidence whatever of negligence.”
    II. Nor is the city liable in a private action for an omission to exercise discretionary functions for benefit of the public at large. Urquhart v. Ogdensburg, 91 N. Y. 71; 2 Dillon on Municipal Corporations, § 753 ; Wharton on Negligence, § 260; Hines v. City of Lockport, 50 N. Y. 236, 238; Mills v. City of Brooklyn, 32 Ib. 489; Lynch v. The Mayor, 76 Ib. 60; Hunt v. Mayor, 109 Ib. 134; Saulsbury v. Ithaca, 36 Hun, 12.
    HI. The question put to Elias B. Dunn, an official of the Weather Bureau of the United States, was erroneously ruled out by the court. The question was perfectly proper in form, and was pertinent to the issue and admissible. The witness was called as an expert and asked in regard to matters about which he was, therefore, presumably better informed than the average citizen would be likely to be, and the defendant certainly had the right to ascertain from him: first, whether or not he had any such knowledge; and, secondly, what his conclusions from such knowledge were. These were facts for the jury to weigh, since they were germane to the issue before them as to whether or not due care had been exercised by the city authorities in regard to the streets.
    IV. The court below erred in refusing to charge as requested by the defendant, and for such error a new trial should be awarded. The defendant made of the court six requests to charge. The court charged Nos. 1 and 6, but refused to charge Nos. 2, 3, 4 and 5. To these refusals the defendant duly excepted. The principles involved in the said requests Nos. 2, 3, 4 and 5, are sufficiently well established not to need the citation of authorities here. The only question is: Is it not likely that the failure of the court to give the jury the opportunity to be warned against ah infraction by them of these principles in their deliberations, tended, in the special circumstances of this case, to mislead them or obscure the issue.they were to try ? It is submitted that the defendant was plainly entitled to have some direction given to the j ury upon all these points. In the case of the refusal of request No. 2, how easy it might well have been for the jury, not warned, after hearing the testimony of the plaintiff’s witnesses as to the number of horses they had seen slip on the gutter-coverings with which this controversy is concerned to reflect: “We think it was negligence on the part of the city authorities to have any iron gutter-coverings in the mid-street. They ought to know that iron is, from its nature slippery.” But nowhere in the charge of the court is anything to be found which bears upon the distinction here to be observed, although no less important a witness than the engineer in charge of sewers called by defendant, testified that wood would be safer, than iron for a gutter-covering, and in the same connection that the question of iron or wood was one of expense only. As to request No. 5, and the failure to charge the same, it would seem to have been equally easy for a juror to say to himself that the failure of the city to provide an underground sewer at Washington and Warren streets, was a piece of negligent parsimony; that a city so great as New York should manifestly have no surface sewerage system at any points where there was a dense population and the traffic great; all of which this court knows, the jury has no more right to pass judgment upon, in law, than it has to do with determining the rules of evidence or the imposition of fines.
   By the Court.—Sedgwick, Ch. J.

The complaint charged, that the horse of plaintiff slipped and fell upon an iron plate or covering over a gutter, across a certain street and that the slipping was caused “ by reason of the dangerous, negligent and unskillful construction and maintenance by the defendant of the said iron plate or covering,” etc.

Upon the trial there was testimony upon which the jury could have found, that the iron' covering, when it was first placed over the gutter, was rough on its surface and furnished a safe foot-place for horses, and since then the roughness had been worn off until its surface was so smooth that it did not furnish a safe foot-place for horses, and was dangerous to horses stepping upon it on all occasions and especially if it were wet and muddy.

On the trial the defendant’s counsel moved for a dismissal of the complaint on the ground that the city cannot be held to liability for an exercise of its judgment and discretion in selecting particular material for a covering of a gutter across a street, and Urquhart v. Ogdensburg, 91 N. Y. 71, was cited to support the motion.

It might be doubted if, in the first instance, the covering was beyond doubt likely to be dangerous and unfit for travel upon it, whether a selection of it would be a use of discretion rather than an abuse of discretion. If this doubt were not valid, the case cited, and others which follow it, declare it to be the duty of a corporation to keep in repair or good order, whatever it has once competently devised and selected. It was therefore for the jury in this case to find whether or not the city had negligently suffered the iron plate which was in the first place safe to become smooth and unsafe, without replacing it with a fresh plate or in some way preventing the place in the street remaining in a dangerous state.

It may be suggested, that if the slipperiness was because of the wet and mud upon the covering of the gutter and therefore the result of causes for which the city was not responsible, Kinney v. The City of Troy, 108 N. Y. 567; Kaveny v. The City of Troy, 108 N. Y. 571, the plaintiff should not recover. In the present case, it was for the jury to say whether the slipperiness resulted from the wet and mud, only, or from the smoothness of the covering, with the wet and mud upon it. If the latter were the cause, and the city negligent in respect of that, then the defendant would not be entitled to a dismissal of the complaint. On the trial the defendant did not ask that the jury should pass upon the matter.

The learned counsel for the city, urges that the cause of action alleged in the complaint did not include a case of the city negligently suffering the plate to get out of repair or out of order. On the trial, no specific allusion was made to the testimony as not supporting the complaint as it was framed. The objections were taken to the sufficiency of the proof to sustain a cause of action, and the proof did sustain the allegation of the complaint that the defendant “ negligently maintained ” the street in the respect specifically averred.

The court refused to allow the question asked for the defendant, of an officer of the Weather Bureau. “ Are you familiar with the effect upon a New York street of much traffic, that such a rain-fall would have ? The witness had testified that rain had fallen, of a described quantity, recently before the accident.

Several considerations support the ruling of the court, even if it be assumed that the witness was an expert, as to part of the subject of the question. The question was too general as relating to many streets in many and various conditions. As to parts of the effect of a rainfall, which are commonly observed, the witness was not an expert.

Before the charge to the jury, the counsel for defendant made six requests to charge. In the charge the ■court complied with the 1st and 6th requests and said, “The other requests I refuse to charge.” There was an exception to that refusal. The court in the charge as made, had correctly referred to some parts of the requests it refused to make, and had made it unnecessary to charge other parts by the way in which it described the legal liability of the defendant. The exception therefore was too general, as there was no specification of any particular omission by the court.

The judgment and order should be affirmed with costs.

Freedman and Ingraham, JJ., concurred.  