
    John Garrison, Plaintiff, v. The Mayor, &c., of the City of New York, Defendants.
    1. Proof that a coach driven upon one of the piers owned by the corporation of the city of New York at the foot of one of the streets, breaks through a plank that is decayed, by means of which the plaintiff’s trunk is thrown into the river, and its contents damaged, is not sufficient to sustain an action against the city for the injury, nor to put the defendants to proof of reasonable and proper care and diligence in keeping such pier in repair. (Woodruff, J., dissented.)
    2. In order to establish, even 'prima facie, a right of action the plaintiff must show affirmatively on his part not only that the plank was decayed, but that the proper officers of the corporation had notice that it was decayed, or show that it was obvious to the eye without any particular examination. (Woodruff, J., dissented.)
    (Before Woodruff, Pierrepont and Monorief, J. J.)
    Heard, February 8;
    decided, December 10, 1859.
    Action to recover damages alleged to have been sustained by the plaintiff by reason of the carelessness and negligence of the defendants in not keeping in-repair a certain public wharf and pier owned by the defendants, and in their care and control, and which they were bound to keep in a good and safe condition, at the foot of a street on the North or Hudson river.
    The answer denied all the allegations of the plaintiff.
    The action was tried on the 23d day of November, 1858, before Mr. Justice Pierrepont and a jury.
    On the trial it was expressly admitted that the defendants are and were in the month of August, 1856, owners of the pier, in question, at the foot of Spring street, on the North river, and thereupon the plaintiff proved by the driver of a coach, that he drove his coach, in which was the plaintiff, having also the plaintiff’s trunk thereon, from the hotel to the pier in question to carry them to a steamboat lying at the pier; that two steamboats were lying there and he had passengers for each; that after delivering passengers and their baggage to one he turned to drive to the other; that in turning he got his coach crosswise of the pier when one of the planks gave way, the wheel of .the coach went through and the coach swung over, and the plaintiff’s trunk was thereby thrown into the water with several others; that he had driven over that part of the dock in going to the boat and saw no crack or hole in it, but that, in turning, the wheel had become lengthwise of the plank; that his coach was much heavier than an ordinary carriage, but that the weight upon the coach when it broke through was not one-twentieth part of what it was when he drove on to the dock.
    Another witness gave evidence tending to show that the plank was unsound, and in part black when it broke and in some part light-colored or “ fresh.” That he could see the plank before it was broken; it was not covered with dirt but was dirty; he saw no hole or crack till it broke.
    Other evidence was given to show that the trunk was properly stowed on the coach, the driver stated that the trunk had support enough by the rail around the top of the coach, and he had never known a trunk fall off.
    Another witness said the trunks were put on as is usual. That in carrying trunks in the manner stated one trunk binds another, and1 that the mode is perfectly safe, and instanced his own experience of many years in confirmation of his opinion.
    No witness stated any contrary opinion. Proof was also given of the contents of the trunk, and that they were damaged by being wet, to the extent or amount of $350.
    Upon these proofs the plaintiff rested his case, and on the defendants’ motion the Judge ordered a nonsuit. To which the plaintiff excepted, and the exception was ordered to be heard in the first instance at the General Term, and the judgment to be in the meantime suspended.
    
      George C. Goddard, for the plaintiff.
    I. The defendants being owners of the pier, receiving a compensation for its use by the public, are under the same obligations to keep it in a safe condition, and subject to the same liabilities as an individual owner.
    “ Municipal corporations in their private character, as owners and occupiers of lands and houses, are regarded in the same light as individual owners and oceupiers, and dealt with accordingly.” (Bailey v. The Mayor, &c., 3 Hill, p. 541, affirmed 2 Denio, 434; and see Rochester W. Lead Co. v. City of Rochester, 3 Comst., 468.)
    II. It was then the duty of the defendants to keep, the pier in a safe condition, and they are liable for losses arising from negr lect of that duty. (Hutson v. The Mayor, &c., 5 Sand., 289; 5 Seld., 163.)
    An implied contract to this effect exists between- those who use the bridge or pier, and the owner.
    III. The plank broke because it was rotten, and with a light weight upon it, and this caused the loss.
    This raises a presumption of negligence, either in. the building of the bridge, or in keeping it in repair; casting the burden of proof on the defendants, if it admitted of explanation, consistent with due care. And the question should have been submitted to the jury. (Ware v. Gay, 11 Pick., 106; Chester v. Griggs, 2 Camp., 79; Stokes v. Salstonstall, 13 Peters, 181; Holbrook v. The Utica and Schenectady R. R., 2 Kern., 236; Foot v. Wiswall, 14 Johns, 304.)
    IV. In this case, however, the negligence is not left to presumption—it was proved.
    An examination of the pier, such as was- defendants’ duty, where life and property are at risk, would have disclosed the rotten timber. (Bailey v. Mayor, &c., 2 Denio, 440.)
    V. It was claimed on the trial,, and made one of the grounds of the application to dismiss the complaint, that the owner of the coach was guilty of negligence,, and that, therefore, the plaintiff could not recover.
    1. If such was the rule of law, it would be a question for the jury whether there was negligence or not.
    2. The negligence of the owner of the coach, if any, could not be visited on those carried in it, either by an action against them, or by depriving them of a right of action they would otherwise have.
    A new trial should be granted, costs to abide the event.
    
      R. Busteed, for defendants.
    I. The corporation is not liable, except for such negligence on the part of its agents as occasions injury to those who have a right to be where the injury occurs.
    
      II. The city is not liable at all for accidents which, cannot be prevented by the use or exercise of ordinary skill in the construction of its piers and streets, and ordinary care and prudence in their management.
    III. Assuming that the plank which was broken by the wheel of the coach was rotten, the corporation would not be liable unless it was proven that the timber was unsound and not fit for use when the'pier was built, or that having become so the city had neglected to replace it after notice of its defective condition, or upon the lapse of reasonable time after the condition of the plank had become patent.
    IV. This accident was clearly a case of the vis major; was produced by the accumulation of weight upon a single point, occasioned by the turning of the coach, and was inevitable. Heither an individual nor a corporate body is liable for such an accident, in the absence of fraud or deceit, unless there has been an express stipulation to be so. The liability of the corporation in a case like this arises only from default to repair after the accident. (Keighley's Case, 10 Coke’s R., 189.)
    V. Hegligence cannot be inferred. The law disfavors such a presumption. In this case the facts contradict the theory of negligence or default on the part of the corporation. The breaking of the plank and the loss to the plaintiff were simultaneous. It is not attempted to be shown that the plank was unsound when the pier was built, and it cannot be held that it is the duty of the corporation to inspect every stone in all of its sewers, and every post or plank in its piers, to ascertain their condition.
    VI. There is no evidence to support the proposition that the plank was in fact unsound before the accident. Cantril merely says it “ was rotten where it broke.” He did not examine it. He had just driven over that part of it, and saw no “crac/c” or hole in it. The witness Baldwin says it looked to him-unsound; but he also testifies that “it looked fresh in some places” where it was broken.
    VII. There was no evidence in the case at all as to the amount of damages, upon which the jury could estimate the extent of the injury. The only testimony on the subject was hearsay, and wholly uncertain at that
    
      VIII. All the cases cited by the appellant as to the presumption of negligence, refer to a different class of responsibilities than those by which a municipal corporation are bound. They are applicable to common carriers, as such, and are only valuable as adjudications in reference to them.
   By the Court—Moncrief, J.

This action was based solely upon a claim for damages caused by the alleged carelessness and negligence of the defendants, in not keeping in repair the wharf and pier upon which the accident happened.

There is no allegation or proof that the wharf was not properly constructed; on the contrary, there is evidence tending to show that the original structure was good, and proper for the uses intended.

The plaintiff in such a case, before he can recover, must introduce evidence from which it may distinctly appear:

1. That the plaintiff did not essentially contribute towards the accident by his own carelessness, negligence and want of reasonable skill.

2. That the defendants were guilty of negligence in not repairing the wharf before the accident happened.

The law recognizes “accidental injuries,” for which there is no redress, and it is a mistake to suppose that every one who suffers damage by accident, can, as a matter of course, make somebody pay for it. (2 Greenl. on Ev., 9 ed., §§ 222, 243.)

If the defendants are liable in this case, it is only ón the ground of negligence in not repairing the wharf prior to the accident, and not unless upon affirmative proof of such negligence as ordinary and reasonable care would have avoided.

The corporation of this city are not to be held to such miraculous foresight, nor superhuman prudence, as will enable it to discover the earliest moment that the sun and rain began to weaken one plank, by decay in its numerous docks, nor to know which plank of its many thousand that one may be. That need of repairs, (if such it can be called,) which reasonable diligence and care cannot discover, it will not be called negligence to overlook.

The defendants offered no evidence; but the plaintiff showed that the coach was the very large one used by the St. Nicholas Hotel, far heavier than the ordinary hack; that it had some passengers and trunks, and that the trunks in question, with others, were upon the top of the coach without any fastening whatever; that they were two or three feet high, protected only by a slight railing some six inches high; that the coach drove over the plank to the boat, let out some six or eight passengers with their trunks, and then, in attempting to turn its wheels, which could not pass under it, became cramped and got straight across the dock, and in backing in this cramped condition the hind wheel was pressed lengthwise upon a plank, and went through it; as the coach swung the trunks “ went off” into the water; that the coachman had just driven over the very same part of the wharf with a much heavier load, and saw no crack or hole in it; that a policeman was stationed there that morning and three or four days previously, and was there often before the accident, and knew of no defect; that the plank was not concealed by dirt, and that there was neither crack nor hole to warn the most cautious until it broke; that no accident had happened there, and no warning whatever had been given; that; the plank was some eight inches wide, two and half or three inches thick, and when taken up after the accident presented some indications of rottenness or decay; and it clearly appears that, until the moment of the accident, there never had been anything to advise the most vigilant of necessity to repair.

The accident, notice of decay and the occasion to repair, were simultaneous facts.

No practicable degree of skill or care could have foreseen or discovered that the plank had decayed until the happening of the accident. At what time should an examination take place, and how frequently shall it be renewed ? Must the watch and examination of each plank and every stone laid upon the piers and in the streets of the city of New York be constant and unremitting? (18 N. Y. R., 536, 537.)

Many of the cases cited by the counsel for the appellant were against common carriers, and' are not applicable to this action, except in some instances to furnish reasoning against the proposition .urged by him. In Christie v. Griggs, (2 Camp., 80,) Mansfield, Ch. J., sajrs: “ If the axle-tree was sound as far as human eye could discover, the defendant was not liable.”

In 9 Bingham, 457, a coach proprietor, a common carrier, is held liable for all defects in his vehicle which can be seen (and should be avoided) at the time of the construction, as well as for such as may be found afterwards on investigation. The axle-tree contained a defect which could be seen at the time it was used in making the coach, and could have been detected by taking off the wood work.

1 Carrington & Payne, 636, lays down the rule “ that a count upon an undertaking to carry a passenger safely cannot be supported without proof of actual negligence of the defendant. (Ingalls v. Bills et al, 9 Met., 1—15.)

In Bailey v. The Mayor, (3 Hill, 541; affirmed, 2 Denio, 433,) the action was for want of proper care and skill in the construction of the dam. Abundant evidence was given tending to show that it was not properly constructed for the uses intended.

In 5 Sandford, 289, the action was for negligence of the defendants in not repairing a public street. It appeared in evidence that there had been'an excavation made in the street; that it was not protected or indicated by a light to warn passers-by. The plaintiff at night met with the accident. Proof of negligence was given, though the case turned upon the question of liability of agents of the defendants, and was defended mainly upon that ground.

In 3 Comstock, 464, the action was for negligence in constructing a culvert. Evidence was given, and the Referee found that the construction was insufficient.

In 3 Hill, 612, notice of the insufficiency of the sewer and of the necessity to repair, was given before the injury.

In 23 Wendell, 446, the defendant had constructed a bridge over which, as a part of the public highway, the public had the right to pass, and were constantly passing, and the bridge was held to be a nuisance, and the defendant to be liable for any damage resulting from accidents happening by reason of the defendant’s neglect at all times to keep that part of the road as free from liability to accident as if such bridge had not been constructed. The defendant was a wrong-doer, and became an insurer to the public that the bridge should at all times be safe and free from liability to occasion damage. In such a case, therefore, proof of the accident throws the onus upon the defendant to excuse his prima facie negligence. The same principle was properly held in this Court, (affirmed, 18 N Y. R., 84,) in the case of Congreve v. Morgan. (5 Duer, 495.)

The defendants in the case under consideration were engaged, in the legal use of their own property, and no nuisance existed. The wharf was not shown to be out of repair or unfit for use, and no inference of omission or neglect of duty could arise.

If a tenant covenant to keep the house in repair, and it becomes ruinous by accident, the covenant will not become broken till after a convenient time for its repair has elapsed. (2 Shep. Touch., 173, ch. 7.) In the case of Mayor of Lyme Regis v. Henly, cited by the -counsel for the appellant, (plaintiff,) it was distinctly held, that in order to make the corporation liable, four things must appear, and among them, 3d. That the place in question was out of repair. (5 Sandf., 315, 21, 3.)

There was no conflict of evidence. The facts were indisputable. An accident happpened by which it was discovered that a plank had previously in part become decayed and rotten. The plaintiff claimed that the fact of decay was prima facie evidence of negligence of the defendants. In my opinion the evidence would not have warranted the jury in finding the defendants guilty of negligence or carelessness; the action, therefore, could not be sustained, and the Court properly dismissed the complaint. Judgment should be entered for the defendants, with costs, &c.

Pierrepont, J., concurred.

Woodruff, J. (Dissenting.)

It is conceded that the defendants are the owners of the pier and wharf at the foot of Spring street. That wharf forms the lower extremity or terminus of Spring street on the North river; it forms the landing place where the street or highway meets the river. The proof showed that the coach, with the plaintiff and his trunk, was driven to that wharf, in due course of business, to deliver some passengers to a steamboat there lying; that on turning the coach one of the planks forming the covering of the wharf broke by reason of its being rotten, the wheel of the coach went down and the coach was partially overturned, the plaintiff’s trunk was thrown into the water, and his goods were damaged. It further appeared that there was dirt on the surface of the wharf, so that the defect in the plank was not apparent from mere observation while walking or traveling over it.

I think that upon these facts alone the plaintiff should not have been nonsuited.

The defendants are charged with the duty of seeing that the streets and highways of the city are kept in proper repair and safe condition for use by the public. (Hutson v. The Mayor, &c., 5 Seld., 163; 5 Sandf., 289; Storrs v. The City of Utica, 17 N. Y. R., 104.) This is not denied; nor is it claimed that their duty in regard to the public wharves at the foot of the streets, open and used as public landing places, is any less stringent. Nor can such a claim be made, especially when they are not only so used, but they are for the purpose of collecting wharf-age and deriving profits therefrom, regarded as being the very property of the corporation.

If, then, the duty exists, it carries with it the incidental duty to use some diligence to see that the wharves do not, by the operation of ordinary and natural causes, get out of repair or go to decay, and so endanger the lives or property of those who in the lawful pursuit of their business have occasion to use them. (See the above cases and Henly v. The Mayor of Lyme Regis, 5 Bing., 91.) The doctrine contended for by the defendants seems to me to be, that, having built a wharf, the defendants may rest without subjecting it to any examination for an unlimited time, and until some one gives them notice that repairs are necessary, or until the want of repairs becomes so apparent to a merely superficial observation that they must be deemed chargeable with notice. This view of their duty will often result as in this case; the surface of the wharves are of course in some degree covered with dirt, and knowledge of the defect will only be gained when an accident happens.

In the present case, the question is, whether enough was not proved by the plaintiff to cast upon the defendants the burden of showing due diligence in the performance of their duty. They are not insurers against accidents. They are not bound to anticipate every cause of defect in the streets, or liable for not remedying every defect, when it is not shown that they had notice, or by reasonable diligence might have known of its existence. (McGinity v. The Mayor, 5 Duer, 674.) They cannot anticipate every case of neglect or misconduct of individuals which may, for the time being, create defects in the street, which however it will become their duty to remedy so soon as notified, and so soon as by reasonable diligence they might know it, whether notified or not.

The wharf in this instance was unsafe. The plank broke because it was a rotten or decayed plank. No evidence was given by either party as to the time when the wharf was constructed, or under what precautions to secure its being done properly.

At the time of the accident it was not safe. This was owing to a defect in its construction, or to its being suffered to remain until by the operation of natural causes one of its planks had decayed.

The corporation must be held to know that planks are liable to decay; and, knowing this, it is their duty to use at least ordinary diligence, in view of the uses to which wharves are devoted, to inspect them and see that they are in a proper condition ; and here enough was done to devolve upon them the burden of either showing that such diligence was used, or that by such diligence the defect could not have been discovered and remedied.

I think the nonsuit should be set aside and a new trial ordered, costs to abide the event.

Judgment ordered for the defendant.  