
    Fred Berger, Respondent, v. Village of Solvay, Appellant.
    Fourth Department,
    April 30, 1913.
    Municipal corporations — negligence — injury by colliding with hydrant moved into pathway — defense — “ governmental function.”
    In an action against a village to recover for personal injuries sustained by the plaintiff, a resident, by colliding with a hydrant, it appeared that the defendant had moved a hydrant into a cinder pathway in front of plaintiff’s residence, which was to be subsequently replaced with a concrete walk located nearer the center of the street; that the hydrant remained in this condition eighteen months prior to the happening of the accident; that on the evening of the accident there had been a light fall of snow and there was no light in the vicinity.
    Held, that the defendant cannot escape liability on the ground that the moving of the hydrant was a “governmental function;" •
    That the evidence established the negligence of the defendant, and. that a verdict for the plaintiff should be affirmed.
    Appeal by the defendant, the Village of Solvay, from a judgment of the County Court of Onondaga county, entered in the office of the clerk of said county on the 22d day of December, 1911, upon the Verdict of a jury for $200, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      Lamont Stilwell, for the appellant.
    
      John P. Hennessey, for the respondent.
   Lambert, J.:

This action sounds in negligence and grows out of the following facts: Plaintiff resides upon the easterly side of Charles avenue in the village of Solvay. Several years prior to the accident complained of there had been constructed along that side of such street a hoard walk. As this walk fell. into disrepair it was replaced with cinders and ashes, which formed a pathway three or four feet wide, somewhat irregular in alignment.

About two years prior to the accident the village adopted a comprehensive plan for the improvement of the sidewalks of the village, including this particular walk. It was designed to replace these cinders with a concrete walk, located somewhat further towards the center of the street. As a preliminary to such concrete construction, a hydrant located in the street and northerly from plaintiff’s premises, was moved some two or three feet nearer the street line and into the cinder pathway above described. Pending the construction of the cement walk cinders were filled in by the village, both sides of the hydrant, so that there was passage-room for pedestrians on either side thereof. The walk was left in this condition until the happening of the accident, a period of about eighteen months.

At about eight-thirty o’clock in the evening of November 7, 1910, plaintiff had occasion to leave his premises hurriedly. In hastening along Charles avenue he came into collision with this hydrant and received the injuries for which he has had a recovery. There had been a slight fall of snow and the locality of this hydrant was unlighted.

The issue of contributory negligence was clearly for the jury. It is as to defendant’s negligence that serious question arises.

This hydrant was a part of the general water system, of the village, and it satisfactorily appears that its location was the result of the determination of the proper authorities. It is urged that the selection of the location for this hydrant was a feature of the general plan for the water system, and that in making such selection the authorities acted in a semi-judicial capacity, and that, hence,, the municipality is not liable for any error in judgment in such selection. The defense of “governmental function” is well recognized in this State. (Wilcox v. City of Rochester, 190 N. Y. 137.) And, in general, a municipality cannot be held responsible for the consequences of the exercise of such a function. It must be conceded that the selection of a location for this hydrant had •to be vested somewhere, and that our form of government vested it in the authorities of this village. It is equally true that the advantageous distribution of water to the community and proper protection from fires require such hydrants to be located somewhere within the confines of the street. The authority to select this particular location undoubtedly existed in the municipal authorities, and no one could compel the removal of the hydrant to another location.

But while that power did exist there were likewise certain duties imposed upon this municipality. Streets are not alone for the location of hydrants, and, in fact, that is not their primary use. They are for the use of individuals in passing from one locality to another for their business or pleasure. The active duty devolved upon these same authorities to keep this street in a reasonably safe condition for travel. While the power existed to so locate this hydrant as they saw fit, yet that did not lessen their duty to the traveling public or to the plaintiff. If, in the exercise of such power, they selected a location which made the use of the street inherently dangerous, then their plain duty arose to safeguard travelers from injury in so using it. This end might be accomplished by lights or barriers, but in the absence of all warning the village cannot escape the consequence of its neglect of a positive duty by merely asserting an unquestioned right to place the obstruction within the line of travel. The mere right cannot override the plain and positive duty.

In Collett v. Mayor (51 App. Div. 394) the court (at p. 398) recognize the justness of this conclusion when they say: “ And it must also appear that if the defect of the plan is such as to make the street dangerous, some steps have been taken, so far as possible, to remedy the defect, or to advise persons using the highway of the existence of the defect, so as they might protect themselves against it.” Such I understand to be the rule applicable to cases similar to this, wherein the defense of “ governmental function ” is involved.

A clear question of fact was presented in this particular, and the verdict should not he disturbed.

There is another view which seems' to me to be conclusive against appellant. The moving of this hydrant was a mere incident to the improvement of the sidewalk. This improvement plan was allowed to lie in an incomplete and unfinished condition for months. During such interval the injury was occasioned, and was so caused solely by reason of -the unguarded and unfinished manner in which the work was left. I can see no distinction in principle between such facts and those involving injury through the leaving of unguarded trenches or barriers in connection with incomplete improvements. (Pettengill v. City of Yonkers, 116 N. Y. 558; Storrs v. City of Utica, 17 id. 105.)

The judgment and order appealed from should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  