
    Frances W. Pettengill, Resp’t, v. The City of Yonkers, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed November 26, 1889.)
    
    1. Negligence—Municipal corporation—When city liable for acts-OF WATER COMMISSIONERS.
    Where the board of water commissioners make a dangerous excavation in the street, which_ remains open for two months, the city is deemed to have knowledge of it and is liable for an injury caused by it where there are no lights or barriers to warn of danger.
    2. Same—Evidence.
    In such a case it is only necessary for plaintiff to show to the satisfactian of the jury either a dangerous obstruction created hy the city and left unguarded or an obstruction created hy a third party and left unguarded by the city after notice of its existence.
    3. Same.
    A person using a public street has no reason to apprehend danger and is not required to he vigilant to discover dangerous obstructions, hut he may walk or drive in the day-time or night-time relying upon the assumption that the corporation has performed its duty.
    Appeal from a judgment of the general term of the second judicial department, affirming a judgment in favor of the plaintiff entered on the verdict of a jury.
    
      Joseph F. Daly, for app’lt; James M. Hunt, for resp’t.
    
      
       Affirming 4 N. Y. State Rep., 830.
    
   Brown, J.

The plaintiff recovered a judgment at the circuit for $10,000 for personal injuries received by her in consequence of an obstruction in Yonkers avenue, one of the public streets in the city of Yonkers.

The obstruction consisted of a heap of dirt and rocks thrown out from a trench dug for the purpose of laying water pipes. The night of the accident was very dark and misty. The plaintiff was riding with her husband in a wagon drawn by one horse, going east, and coming in contact with the heap of dirt and stones the wagon was overturned and the plaintiff injured.

The evidence as to the existence of lights at or near the place of the accident was conflicting, but the jury were authorized to find, and on this appeal we must assume they did find, the facts in conformity with the plaintiff’s proof. Upon that assumption there was no light within 100 feet of the place of the accident, no guard or barrier around the heap of dirt, or the open trench, and nothing to warn the plaintiff or her husband of danger.

We are of the opinion that the case, in all its aspects, was one for the consideration of the jury.

The point that proof was admitted which was at variance with the cause of. action alleged in the complaint is not well taken. The cause of action was negligence on the part of the defendant in permitting one of the public streets of the city to be in a dangerous condition. The facts which constituted the negligence were alleged to be the excavation of a dangerous hole or trench and throwing up a dangerous embankment therefrom in the street, and in suffering the trench and embankment to be without protection or notice to travelers .on the night of the accident.

These facts were denied by the answer, and, under the issue thus made, the plaintiff was entitled to recover by showing to the satisfaction of the jury either a dangerous obstruction created by the city and left unguarded, or an obstruction created by some third person and left unguarded by the city after notice of its existence. Upon the latter branch of the case all the evidence relating to the condition of the street and the absence of lights prior to the accident was admissible, as it tended to show a condition of affairs from which the jury could infer that the city had, or ought to have had, knowledge of the dangerous condition of the street.

The evidence as to the existence of lights at the trench after the accident was confined to the night in question, and was admissible to contradict the testimony of the contractors that a light was there. It may not have been strictly in rebuttal, but its admission was discretionary with the trial court.

Even if the appellant’s contention that it was not responsible for the negligent acts of the water board was sound, that would not relieve it from liability in this case. The dangerous condition of the street had existed for two months or more before the accident, and the defendant must be deemed to have had knowledge of it. Its duty was to keep the streets in a safe condition for public travel, and it was bound to exercise reasonable diligence to accomplish that end, and the rule is now well established to be applicable, whether the act or omission complained of and causing the injury is that of the municipal corporation or some third party. Nelson v. Village of Canisteo, 100 N. Y., 89.

Where public or private improvements are being made in a street, it is the duty of the city to guard and protect them so as to protect travelers on the street from receiving injury therefrom. Turner v. City of Newburgh, 109 N. Y., 301; 15 N. Y. State Rep., 93. And, if necessary to prevent accidents, it should, by some barrier, close the street against the public so that no harm may happen if the work on the street is delayed. Russell v. Village of Canastota, 98 N. Y., 496.

A person using a public street has no reason to apprehend danger, and is not required to be vigilant to discover dangerous obstructions, but he may walk or drive in the day time or night time relying upon the assumption that the corporation whose duty it is to keep the streets in a safe condition for travel has performed that duty and that he is exposed to no danger from its neglect.'

Although the street where this accident happened had been in a dangerous condition for weeks, the proof does not show the slightest effort on the part of the city to warn travelers of its condition. It appeared to have relied upon the contractor to maintain the warning lights at the excavation which under his contract he was bound to do. But the city was not absolved from its liability by this provision of the contract. Turner v. City of Newburgh, supra.

We think, however, that the board of water commissioners was one of the instrumentalities of the government of the city, and that the defendant is liable for its negligent acts. In Ehrgott v. Mayor, 96 N. Y., 273, this court said: “To determine whether there is municipal responsibility, the inquiry must be whether the department whose misfeasance or nonfeasance is complained of is a part of the machinery for carrying on the municipal government and whether it was at the time engaged in the discharge of a duty or charged with a duty primarily resting upon the municipality.”

The duty of supplying the citizens of Yonkers with water is by statute made a municipal duty and the board of water commissioners exist for that purpose.

While this board is created by special statute it is recognized as a department of the city government in the charter and charged with the duty of “making the necessary surveys, etc., and preparing a general plan ana system of sewers for the city;” also “of preparing and approving specifications for constructing all sewers, drains, wells, fire cisterns, laying water pipes and erecting hydrants.”

The board exists solely for the benefit of the city. It can own no property and do no act that has not reference to the well-being of the city. It is given the power to purchase and acquire land, but the title when acquired vests in the city. For its contracts the city is liable, and judgments recovered against it are judgments against the city. When the water rents collected by it are more than sufficient to meet its expenses, the surplus must go to the benefit of'the city. It is denominated the “board of water commissioners of the city of Yonkers.” It is not an independent body acting for itself, but is a department of the city, and one of the instruments of the municipal government. Being such when engaged in digging the trench for the purpose of laying water pipes in Yonkers avenue, it was engaged in the discharge of a municipal duty, and it was obligatory upon it in so doing to so protect and guard the work that it should not endanger persons using the street, and if that was impossible with a due and diligent prosecution of the work, the street should by suitable barrier have been closed against the public.

For its failure so to do, and for injuries resulting from such failure, the defendant is liable. Ehrgott v. The Mayor, 96 N. Y., 265; Walsh v. The Mayor, 107 id., 220 ; 11 N. Y. State Rep., 401; Barnes v. Dist. of Columbia, 91 U. S., 540; Brusso v. City of Buffalo, 90 N. Y., 679.

None of the exceptions to the charge of the learned judge who presided at the trial are well taken, and the judgment should be affirmed, with costs.

All concur, except Haight, J., not sitting.  