
    Edwin Collett, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
    
      Negligence—injury to a bicyclist running on a curb near, but off the Une of¡ a bicycle path in a public-park.
    
    A line of curbing twenty feet in length and a few inches in height, of almost the same color as the surrounding roadway, located-outside of the line of an entrance to a bicycle path on Riverside drive in the city of Flew York, but so near such entrance that a person riding through- it at night might strike the curbing, constitutes a defect, which renders it incumbent upon the city authorities to so light the entrance that a person using the path at night will be able to avoid the obstacle.
    The fact that the line of curbing was left in that situation at the time the-entrance was constructed, by the.corporation, will not relieve the city from liability for injuries caused thereby, where it .appears that no formal plan of construction was adopted by the city authorities, and that the determination to leave the curbing.near the entrance was reached by the engineer in charge of the work on his own authority and judgment, in order to avoid leaving a basin head in the center of the entrance.
    
      The fact that Riverside drive is a portion of one of the city parks does not relieve the park commissioners, who know that great numbers of people use the bicycle path at night, from the duty of seeing that the path is reasonably safe for the use for which it is intended.
    Ingraham, J., dissented.
    Appeal by the plaintiff, Edwin Collett, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 27th day of October, 1899, upon the verdict of a jury rendered by direction of the court.
    
      H. E. Lee, for the appellant.
    
      Theodore Connoly, for the respondent.
   Rumsey, J.:

Down to the month of April, 1897, there existed on the west side of Riverside drive in the city of Hew York next to the bridle path a foot path which had been separated from the bridle path by a narrow strip of grass and a line of curbing. At that time a bicycle path was laid out upon the easterly portion of the foot path so that it lay between the bridle path and the remaining portion of the foot path. • Shortly after it was constructed there were made, opposite the place where One Hundred and Eighth street entered the Riverside drive, openings by which persons coming out of One Hundred and Eighth street on their wheels could by crossing the drive enter the bicycle path. There were two of'such openings separated from each other by grass plots. Persons coming from One Hundred and Eighth street were expected to enter the path hy the right-hand opening, which was about thirty feet wide. About twenty feet to the north of the opening was a grass plot, and extending from it to the south towards the opening in the bicycle path was a line of curbing about twenty feet in length, which had been left there when the opening was cut through. This line of curbing was a few inches in height, and was composed of bluestone of almost the same color as the stone of which the surrounding macadam road was built, so that in the evening it was difficult to distinguish it from the road. The only light in the neighborhood was a gasoline lamp in the center of the carriageway, and about sixty feet from the bicycle path. The light from this lamp was not sufficient to enable one riding his wheel at night to distinguish the curbing.

The entrance to the bicycle path had been constructed for some weeks before May 16, 1897, and had from the time of its construcr. tion remained in the condition above described. On the night of the" 16th of May, 1897/ the plaintiff came out. of One Hundred and Eighth street on his wheel and crossed Riverside drive, intending to enter the bicycle path. To do so he took, as he was required to do, the right-hand entrance. In addition to the light from the gasoline lamp above mentioned, he had upon his wheel a lamp which threw its rays from fifteen to twenty feet, but the light from it was not sufficient to enable him to distinguish the curbing from the surface of the roadway about it. He was riding slowly. When, he came to the entrance, instead of going to the south- of the curbing, he went so far to the north that he ran against it and was thrown from his wheel,"receiving serious' injuries, to recover damages for which he brought this action. At the trial a verdict was ordered against, him at' the close of the evidence, and from the judgment so entered this appeal is taken. -

While this curbing was outside of the line of the entrance to the bicycle path, yet the jury' might have found from the evidence that that portion of the drive to which the path was intended to be confined was so dimly lighted that one approaching the entrance would not be able to distinguish the boundary line between it and the path, and could not see the curbing and could not tell precisely where the entrance to the path was.

It was in evidence, and not disputed, that during the time the curbing had been in that position a good many people had ,run into' it who were more or less injured, and that fact was known to the policeman in charge. It was also apparent from the evidence -.that the bicycle path was used by a very large number of people every night, and for that reason .policemen' were stationed there at night as well as during the day. The entrance was made for the use of those bicycle riders who had occasion to enter the path at that place. It is common knowledge that if one riding a wheel runs into an obstruction he is likely to be thrown from his wheel and injured. Since the path was intended for persons using that kind of vehicle, subject to those risks, it-was the duty of the officers of the corporation to so construct it that it would, be safe for such use. It is quite clear that the existence of this curbing, so close to the apparent entrance of the path, and so situated that one attempting to enter it could not-tell whether the curbing was within the boundary of the path, constituted a defect, and it was, therefore, the duty of the officers of the defendant to use reasonable care to see that some notice or information of its existence was given to those using the entrance so that they might avoid the danger. (Ivory v. Town of Deerpark, 116 N. Y. 476; S. & R. Neg. § 356.)

It cannot be said that the plaintiff, in attempting to enter the path, was not using reasonable diligence. He testifies that, as he approached, the light was not sufficient to enable him to detect the entrance and become aware of the curbing.. .He had no reason to anticipate any such obstacle would be in the highway. Therefore, whether or not he was guilty of negligence, was a matter for the jury. The result is that, unless some defense is established by the evidence, the court erred in directing a verdict for the defendant.

The defense insisted upon is, that this curbing was left where it was in pursuance of the plan adopted by the corporation when the bicycle path was laid out; and it is claimed that the act of the Corporation, in leaving the curbing in its position, was a quasi judicial act upon which negligence cannot be predicated. While it is the duty of every corporation, which has occasion to lay out a highway or to open a street, to use reasonable care to see that the street should be so laid out as to be reasonably safe for persons using it, the law recognizes tliat, under certain circumstances, it may be necessary to so construct the street that it may not be perfectly safe for travel; and when that is the case, and the street is in such a condition- that it is unsafe as a necessary result of the plan of its construction, the courts have held that the corporation is not liable for any injury to one passing, which arises solely and purely because of the defect in the plan adopted. Biit it is quite manifest that such .a rule, tending as it does to relieve a corporation very largely from the results of the carelessness or ignorance of its officers, and which tends to increase the danger to persons using the streets, is not to be extended to cases which are not clearly included within it. [Kiernan v. Mayor, 14 App. Div. 156.) Before a corporation can claim exemption from liability for a defect in a highway because of a fault in the plan, it must be made to appear not only that the work was done precisely in accordance with the plan, and that the injury resulted because of it, but that the plan was.one adopted by the corporation (Clemence v. City of Auburn, 66 N. Y. 334); 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 that they might protect themselves against it. (S. & R. Neg. § 275, and cases cited; Munk v. City of Watertown, 67 Hun, 261.)

In this case it appears from the testimony of the engineer who opened the entrance.that no plan was adopted by the authorities of the city. He testifies that after the bicycle path had been completed for some little time he was directed to open this entrance by the park commissioners, but he testifies that he received no directions as to how it was to be opened. He says that he found a basin .head at the front to which this curbing extended which he thought if permitted to remain in the center of the entrance where he found it would be an obstruction making the. entrance unsafe, and that upon looking the ground over he came to the conclusion upon balancing the dangers of the basin head and the curbing that the danger to be apprehended from the head was greater than the curbing. So it was a pure. question of his judgment whether it was more dangerous to leave the basin head than to leave the curbing and he decided and did leave the curbing. But it is evident that in so doing he did not pursue any plan given him by the city authorities, but that he acted on his own authority and judgment. It is clear, therefore, that this defect was not caused by carrying out a plan under which the engineer was directed to work.

This case is more like the case of Clemence v. City of Auburn, where the plan' followed was one ordered by one of the common council who saw fit to do so and not the one adopted by the common council, and the court. held that the plan suggested by the chairman of the council could not be said to be a plan adopted by- the city, and for that reason the doctrine as to a quasi judicial proceeding did not apply.

But in this case the rule does not apply for another reason. It is not denied that this curbing extending into the bicycle path was a dangerous obstruction. That fact not only appears by the testimony of the plaintiff but is warranted by the testimony of the engineer who left it there. It was, therefore, an obstruction the danger of which was known to the proper authorities of the city, and it was their duty to see that reasonable care was used to warn persons of its existence so that they might avoid it. (Ivory v. Town of Deerpark, 116 N. Y. 476; Pettengill v. City of Yonkers, 116 id. 558 ; Maxim v. Town of Champion, 50 Hun, 88; Dillon Mun. Corp. [3d ed.] § 1024; Storrs v. City of Utica, 17 N. Y. 105.) It cannot be denied that such notice of the obstruction should have been given that persons approaching the entrance might have avoided the danger.

The lamp which would have under certain circumstances shown this defect, was, because of the particular circumstances existing here, insufficient. But it is said that this was not a public highway but a part of one of the parks of the city, and that it is not the duty- of the park commissioners to see that it was kept lighted at night, and on that point is cited the case of O'Rourke v. Mayor (17 App. Div. 349). In that case it was held that it was not negligence for the park commissioners to fail to light a walk in a park for pedestrians so as to advise them of steps down which it was necessary to go. But that case was put purely upon the ground that their duty was only to keep the walks reasonably safe; that the construction of the steps was not improper; that the walks were not expected to be used at night to the same extent that the streets were, and that as the walks were not to be so used, it was not the duty of the city to light them so that the attention of people would be called to irregularities in their surface; and that people walking in the parks at night have no right to assume that the surfaces are continuous, as they might do with reference to the walks of a street, and they have no right to walk along regardless of the fact that the walks are not continuous. This case, however, was entirely different. It appears affirmatively that this bicycle path was used by great numbers of people not only in the daytime but at night, and that fact must have been known to the authorities of the city. It was their duty, therefore, to see that the path so used was reasonably safe for the use for which it was intended; and, as it was intended for such vehicles, that a slight obstruction would be a defect, it was their duty to see that no such defect existed, or, if it did exist, to give such notice of its existence that one. approaching might have an opportunity ■ to avoid • it. Although it is to he expected that more people would-usé the bicycle path in the' daytime-than in the night, yet it was not closed at night; and it is the-duty of the park commissioners to see that every place to which people are admitted at night is reasonably safe, and if they fail in that duty the city is liable whether the.accident occurs, in the daytime or at night. For these reasons the judgment must be reversed and a new trial ordered, with costs. to the appellant to abide the event.

Van Brunt, P. J., Patterson and Hatch, JJ., concurred; Ingraham,- J., dissented.

Ingraham, J. (dissenting):

I do not concur in the reversal of this judgment. The accident happened on Riverside drive, a portion of Riverside Park, under the exclusive control of the park commissioners. As a part of that park there is a path for pedestrians, a bicycle path and a roadway for carriages. These drives or paths through the park are not' ordinary public highways, but are provided for the amusement and benefit of the people. When the park commissioners undertook to open this passageway from the roadway to the bicycle path a question was presented to them as to the proper method of making the connection, and that question was left by the park commissioners to their engineer, who was.instructed to make the proper alterations. The engineer testified, and it was not disputed, that in consequence of the location of a basin head at this particular point it would have been dangerous to remove all of the curbing which had before separated the bicycle path from the roadway, and that for the protection of those using this jiassage the existence of a portion of the curb in front of the basin head was necessary. In making that determination he considered the surrounding conditions and decided that it was for the public interest and the protection of those using this path that this basin head should be protected by the curb. He removed the curbing between the bicycle path and the roadway, leaving ample room for persons desiring to enter the bicycle path, and leaving only enough of the curbing to protect this basin head ; but there- is no dispute but that this situation as thus created was perfectly safe and proper in the daytime, or when there was sufficient light to see the curbing and distinguish it from the roadway. The plaintiff, however, attempted to use this road at night, and, faffing to see the curb, he was injured. The accident was occasioned, not so much by the curb being in the position as by an absence of sufficient light at that place so that persons using the road could see just where the .passage to the bicycle path was clear. It would seem that there was no obligation of the city to maintain a light at this spot, or to make this parkway so light that persons using it would not run upon obstructions in the road. If the curbing had been removed and the plaintiff had run upon this basin head and had been injured, he would have had just as much right to complain as he has now for running upon the curb. There is no dispute but that there was ample room for the jffaintiff to proceed from the roadway to the bicycle path. He failed to see the curb, not because the curb was in the passageway, but because of the absence of sufficient light he was unable to distinguish the side of the passageway prepared for use. The negligence, if any, was not, it seems to me, in leaving the curbing which, from the evidence, would appear to have been necessary tó protect the basin head, but in failing to furnish sufficient light to enable one using the road to distinguish just where the proper entrance to the bicycle path was and thus to avoid running upon an obstacle placed outside of that entrance. If the plaintiff, in using the bicycle path, had run off on one side and been injured he certainly would not have been entitled to damages because of an absence of light which would have enabled him to see the side of the bicycle path; and it would seem to me that this was nothing more than such an accident, occasioned, not by any negligence of the city, but because at this particular point the plaintiff was not able to see the boundary of the passageway provided for those who wished to pass from the roadway to the bicycle path. It is not claimed that the city could be held liable for an absence of light at this particular point. If the city is to be liable for all accidents happening to those using bicycles in the streets or parks at night, because there is not sufficient light to enable them to see obstacles in their way, the liability of municipal corporations will ■ be much 'extended. An entirely different rule, I apprehend, applies. to parks of this description than to ordinary public highways where a duty is imposed upon municipal corporations at all times to keep them in a safe and proper condition for public use. The utmost obligation imposed upon municipal corporations, maintaining such parks for the benefit of the public, is to provide ordinarily safe walks and drives and to keep them in proper condition. They provided here a perfectly safe passageway in the daytime. It was kept in good condition, and I can see no principle upon which the city could be liable because a person using it at night'was unable to see ■an obstruction which the authorities having charge of that work determined was necessary for the proper protection of the public.

It seems to me that this case is controlled by O'Rourke v. Mayor (17 App. Div. 349).

I think, therefore, that the judgment should be affirmed.

Judgment reversed, new trial ordered, costs to appellant to abide event.  