
    Fanny Pitman, as Administratrix, etc., of Samuel Pitman, Deceased, Plaintiff, v. The City of New York, Defendant.
    Second Department,
    December 2, 1910.
    Municipal corporation — negligence —fall on steps of comfort'station — . plan of structure — duty of repair — contributory negligence.
    Where power- is conferred on public officers ór a municipal corporation to make improvements such as streets, séwers, etc., and to- keep 'them in repair, the •duty to make them is quasi-judicial or discretionary and for a failure to exercise this power, or for an erroneous estimate of the public needs, no civil action can be maintained. . • '. .
    Thus, where the board-of aldermen of New York city, pursuant to authority to • provide comfort stations on the streets, authorized the .building of certain stations, the city is not liable to one who was injured by slipping on the steps, because the plan failed to provide for a handrail or for rubber or metal treads on the steps, unless it appear that the plans as made and executed were not adopted by the proper authorities. The burden of showing the absence of such adoption is on the plaintiff. '
    Where, however', such a structure has been duly erected, the duty of keeping it in repair is ministerial and for neglect of such duty an action by one injured will lie against the city.
    Where a man of mature age, while descending the stairway of a comfort station, slipped, fell and suffered fatal injuries and there is evidence'that the accident was occasioned by reason of. the fact that the steps had been worn smooth and were damp and slippery, it is error to dismiss the complaint for the question of the negligence of the city was for the jury.
    Actual notice to the city of the condition of the steps was not essential, for it was incumbent upon the authorities to exercise a reasonable degree of watchfulness under the circumstances.
    Where it appears that at the time of the accident the decedent was descending the steps slowly and tried to save himself as he fell, the question of contributory negligence was for the jury.
    Motion by the plaintiff, Fanny Pitman, as administratrix, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance'upon the dismissal of the complaint .by direction of the court after a trial at the Kings County Trial Term on the 6th day of May, 1910.
    
      Robert Stew,art [Ralph G. Barclay with him on the brief], for the plaintiff. _ •
    . James D. Bell [Archibald R. Watson with him on the brief], for the defendant.
   Jenks, J. :

The action is for negligence. At the close of the evidence the plaintiff was dismissed, judgment was directed for the defendant' and the exceptions ordered for hearing before us in the first instance.

The plaintiff’s intestate, a man of mature years, descending the stairway of a comfort station in the borough of Brooklyn slipped, fell and suffered fatal injuries. It is charged that the city negligently maintained the stairway in a dangerous and defective condition, in that it was not furnished with a handrail and that the steps were sloping, smooth and dangerous. The plaintiff gave .evidence that, tended to show, that either "a handrail should, have been provided or .that the steps which were of granite should have been tooled or guarded by rubber of metal treads. .

Authority to provide for comfort stations is conferred upon the board of aldermen of the city and the president of a borough has cognizance and control of the location, establishment, care, erection and maintenance thereof. (Greater New York Charter, §§ 50, 383, subd. 12.) ' It is conceded that, this particular comfort station was duly authorized, and it appears that the plan of construction thereof neither included a handrail nor the tooling or protection of the steps by metal or rubber treads, but thát the steps as built were rough-axed in accord with that plan. In Urquhart v. City of Ogdensburg (91 N. Y. 67) it is declared : .“ The rule is well settled that where power is conferred on public officers or a municipal corporation to make improvements, such- as streets, sewers, etc., and keep them in repair, 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. But when the discretion has been exercised and the street- or improvement made the duty of- keeping it in repair is ministerial', and for neglect to perform such a duty an action by the party injured will lie.. (Hines v. City of Lockport, 50 N. Y. 238; Mills v. City of Brooklyn, 32 id. 489; Lansing v. Toolan, 37 Mich. 152; Marquette v. Cleary, 37 id. 296; Darling v. Bangor, 68 Me. 112.)” (See, too, Paine v. Village of Delhi, 116 N. Y. 224.) I think that this rule protects the" defendant in the matter of' construction, unless it appeal’s that the plan as made and executed was not adopted by the authorities. The approval of the plan was as much a judicial act as the design of it. (Urquhart's Case, supra; Clemence v. City of Auburn, 66 N. Y. 334; Collett v. Mayor, 51 App. Div. 397.) The plaintiff was bound to show the absence of such approval or adoption, but there is no evidence that tends to show such omission.

Upon the proof I think that the only cause of action upon which the plaintiff could rely rests upon the condition of the steps at the time of this accident. Comfort station is amice euphemism fór a public urinal ¡designed for the use of travelers in the public street, and such a structure may, I think, be regarded as an appendage to such street. The authorities must have contemplated that the stairway would be in more or less constant use by the travelers in the street. This public urinal was opened in 1903. There is evidence that, at the time of this accident in 1906, the steps appeared very smooth, slippery and damp; that they were worn “ pretty smooth ” in 1905; that the entire surface of the steps save the lowest step was exposed to the atmosphere throughout the year; that travel ' upon them under such conditions made them smooth and slippery; that they were not protected by metal or rubber treads, and that no handrail had been furnished. It was possible for the jury to End that the cause of the accident was the condition of the steps which I have described. And if the jury did so find, then I think the further question would be presented whether such condition was due to the negligence in the. matter of repair; i. e:, whether the authorities should have tooled the steps, or otherwise protected the users of them against slipping upon them. For, as pointed out in Urquhart's Case (supra), the duty of repair is ministerial. (See, too, Roe v. Mayor, 22 N. Y. St. Repr. 413; Cassidy v. City of Poughkeepsie, 71 Hun, 144; affd., 143 N. Y. 670.) Actual notice was not essential, for it was incumbent upon the authorities to exercise a reasonable degree of watchfulness under the circumstances. (McCarthy v. City of Syracuse, 46 N. Y. 194; Todd v. City of Troy, 61 id. 506; Turner v. City of Newburgh, 109 id. 301.) And the evidence is that the stairs were worn “ pretty smooth” a year before the accident in question.

I think' that the question of due care on the part of the plaintiff’s intestate was for the jury. It appears that he had gone to his work that day; that the accident took place about. 6 o’clock p. m. ; that he was descending the steps slowly at the time of the accident, and that he attempted to save himself as he fell.

The plaintiff’s exceptions áre sustained and á new trial is granted, costs to abide the event.

IIirsohberg, P. J., Woodward, Thomas and Rich,. JJ., concurred.

Plaintiff’s exceptions sustained and a new trial granted, costs to abide, the event.  