
    FREDERICK P. WILSON, Appellant, v. THE CITY OF WATERTOWN, Respondent.
    
      Municipal corporation—streets of—dangerous condition of—streets include sidewalks —Laws of 1850, chap. 140, § 28, sub. 5 — 3 Edm. St., 627 — Neglect of duty of B. B. Go — when city liable for — when B. B. Go. liable over to city.
    
    It is the duty of a municipal corporation to keep the streets under its control at all times in a safe condition, and it is liable to a person who has sustained an injury in consequence of Its neglect of that duty.
    Sidewalks are comprehended in the term streets.
    The fact that the dangerous condition of a street resulted from acts of a railroad company, for which the railroad was liable to the city, does not exonerate the city from liability for injuries resulting to a person by reason of the condition of the street. All wrong-doers are severally liable to the party injured. The general railroad act, which gives a company authority to occupy a street of a municipal corporation with its tracks, does not release the corporation from liability for injuries sustained by a person arising from the dangerous condition of such street. In case such condition of the street results from the neglect of duty of the railroad, it will be liable over to the city for the damages recovered against it by reason of such neglect.
    Appeal from an order made at the Jefferson Circuit granting a nonsuit, from an order made at Special Term denying a motion to set aside the nonsuit, and from a judgment entered in favor of the defendant on such orders.
    The Carthage, Watertown and Sacketts Harbor Railroad Company is a corporation authorized to build a railroad from the village of Carthage, in Jefferson county, through the city of Watertown, in said county, to the village of Sacketts Harbor, in said county. In August, 1873, said railroad company being about to construct their railroad through the city of Watertown, the common council of said city passed a resolution whereby permission was granted to said railroad company to build a railroad track across and along certain streets in said city, naming them (among which was Mill street), upon complying with the general statutes of the State in regard to crossing streets by railroad companies. In pursuance of said resolution of the common council, the said railroad company, on the 4th day of January, 1874, commenced to construct their track across said Mill street, and in doing so raised an embankment some three feet above the surface of the street. Where the embankment was made, the stone of the sidewalk had been taken up and piled on each side of the walk.
    On the morning of the 15th of January, 1874, a little before daylight, the appellant going north on the west side of Mill street, slipped, fell and was injured; and he brought this action against the defendant to recover damages for the injuries he had sustained. On the trial the appellant was nonsuited. A motion made at Special Term to set aside the nonsuit was denied; and from the order directing a nonsuit, the order denying a new trial, and the judgment entered in the case, the plaintiff appealed.
    
      I). O’Brien, for the appellant.
    When, by the charter of a city, the common council has the powers of commissioners of highways, the city is liable for their acts. (Conrad v. Trustees of Ithaca, 16 N. Y., 158 and note; Clark v. City of Lockport, 49 Barb., 580; Hines v. City of Lockport, 60 id., 378.) They must keep the sidewalks in repair. (Graves v. Otis, 2 Hill, 466; Hines v. City of Lockport, 60 Barb., 378; Walker v. City of Lockport, 43 How., 366.) The sidewalk is a part of the public street. (Wallace v. The Mayor, 2 Hilt., 440; 9 N. Y., 163, 168-169; 4 id., 630; 1 Denio, 601; Thompson on Highways, 329.) Both the city and the individual whose duty it is to repair or build the walk, are liable to a party injured by a defective walk. (Davenport v. Ruchman, 37 N. Y., 568; 50 id., 236; 2 Hill, 466.) And the word “ streets ” includes “ sidewalks.” (Sherman & R. on Neg., § 385.) When a public body has power to do an act which the public interest requires to. be done, the execution of the power may be insisted upon though the statute is merely permissive. (Hines v. City of Lockport, 50 N. Y., 236, and cases there cited; S. C., 60 Barb., 378; 16 N. Y., 158 and note.) The city is liable for any omission or neglect of the common council to repair and keep both streets and sidewalks in a safe condition. (Mosey v. The City of Troy, 61 Barb., 580; Ellis v. The Village of Lowville, 7 Lans., 434; 27 Barb., 218; 32 id., 634, is disproved in 44 id., 385.) The absence of funds, or power to raise funds, to repair a street or sidewalk, is a matter that must be pleaded and proved as a defense. (50 N. Y., 238.) A rule of the common law will not be regarded as changed or repealed unless the legislature has manifested an intention to do so by the words of the act. (Renwick v. Morris, 7 Hill, 575; Dwarris on Stat., 678; Renwick v. Morris, 3 Hill, 621; Clark v. Brown, 18 Wend., 220; Colden v. Eldred, 15 John., 220; Platt v. Sherry, 7 Wend., 238; Burnham v. Onderdock, 41 N. Y., 425.) If a party has a right of action at common law, and a statute gives an affirmative or additional duty or remedy, without any negative, express or implied, he may elect as to which remedy he shall pursue, or may have both. (Almy v. Harris, 5 John., 175; Swarthout v. N. J. Co., 46 Barb., 226; Hardmann v. Bowen, 39 N. Y., 198; Small v. Herk. Manufacturing Co., 2 id., 349.) The duty of the railroad to restore the street, that it had rendered dangerous, was a matter between itself and the city. (Dillon on Munich Corp. [2d ed.], § 796, note 2; Laws 1855, chap. 255; Sherman & R. on Neg., § 393; Currier v. Lowell, 16 Pick., 170; Clark v. City of Lowell, 1 Allen, 180; Davis v. Town of Leominster, 1 id., 182; Johnson v. Salem Turnpike, 109 Mass., 522; Pollard v. Woburn, 104 id., 84; Woburn v. Boston & L. R. R., 109 id., 283. See, also, 109 id., 197, 204, 446; Dillon on Munic. Corp., § 796, and case in note; Hutson v. The Mayor, etc., 5 Sandf., 289; 9 N. Y., 163; Wendell v. The City of Troy, 39 Barb., 329; 4 Keyes, 261. See, also, Walker v. Caywood, 31 N. Y., 51; Ploedteril v. The Mayor, Law Journal, No. 12, Sept. 19, 1874, page 186 [Ct. of Appeals].) The railroad is liable over to the city for any judgment recovered against it in this action. (Lowell v. B. & L. R. R. Co., 23 Pick., 24; Woburn v. B. & L. R. R. Co., 109 Mass., 283; Dillon on Munic. Corp., § 796.) When the obstruction is caused by the order or authority of the city, as in this case, no notice is necessary. (Dillon on Munic. Corp., § 790; 39 Barb., 329.) Notice is presumed from the existence of the defect for such a reasonable time as would enable the defendant’s officers to discover the same. (Requa v. City of Rochester, 45 N. Y., 129; McCarthy v. City of Syracuse, 46 id., 194; Davenport v. Ruckman, 16 Abb., 341.) They are chargeable with all the knowledge that could have been obtained by watchfulness and inquiry. (Am. Law Reg., vol. 13, p. 334.) But whether the street was dangerous or the plaintiff negligent was for the jury. (108 Mass., 580; 107 id., 339; 105 id., 82; 27 Barb., 228; 50 id., 115; 32 id., 144; 39 How., 414; 49 N. Y., 521; 4 Robt., 344; 24 How., 176; 35 N. Y., 38 ; 57 Barb., 651, 652; 3 Kern., 533; 51 Barb., 644; 32 id., 568 ; 51 id., 105-114.)
    
      John Bansing, for the respondent.
    The railroad company was bound to restore the street to such state as not unnecessarily to have impaired its usefulness, and to maintain and keep the street in such state. (The People v. The Troy & Boston R. R. Co. [S. T.], Miller, J., 37 How., 427; affirmed, October 25, 1870.) The same doctrine is held in Moshier v. Utica & Schenectady R. R. Co. (8 Bar., 427, G. T.). The city was not bound to repair the same, and therefore was not liable to the plaintiff for any damage sustained by him by reason of _any defect or want of repair thereof. (Sawyer v. Inhabitants of Northfield, 7 Cush., 490-498; Young v. Yarmouth, 9 Gray, 386.) No duty being imposed on the city to repair or build sidewalks, if the owners of lots fail so to do, the city may do so at the expense of the owner; the city is not responsible for damages happening by reason of such neglect. (Cole v. Village of Medina, 27 Bar., 218; Peck v. Village of Batavia, 32 id., 634; Hart v. City of Brooklyn, 36 id., 226; Harrington v. Village of Corning, 51 id., 396; Diveny v. City of Elmira, 51 N. Y., 506; Ellis v. Village of Lowville, 7 Lans., 434; Hyatt v. Rondout, 44 Bar., 385; Requa v. City of Rochester, 45 N. Y., 129.) The appellant was himself guilty of negligence and cannot recover. (Wilds v. H. R. R. Co., 23 How., 492.) If negligence on the part of the plaintiff is shown, it is the duty of the judge to nonsuit. (Bernhardt v. R. & S. R. R. co., 23 How., 167.) The appellant was bound to show affirmatively that he was not guilty of any negligence contributing to the injury. (Button v. H. R. R. Co., 18 N. Y., 248.) If the nonsuit was proper on any grounds taken at the trial, the judgment should be affirmed. (Day v. Crossman, 1 Hun., 570-573.)
   Gilbert, J.:

The duty of municipal corporations like the defendants, to keep the streets under their control at all times in a safe condition, and their liability to a person who has. sustained an injury in consequence of their neglect or breach of that duty, have been conclusively established in this State, and it is now pretty well settled, that sidewalks are comprehended in the term streets. It cannot be necessary to go over the decisions upon this subject. A reference to some of the cases in which the salutary rule of law stated, has been asserted and approved, will suffice. The plaintiff was injured while passing along Mill street, in the city of Watertown. He brought this action to recover compensation for that injury, and was nonsuited. The only reason assigned for the nonsuit, was, that the liability of the defendants had been shifted to, and imposed on, the Carthage, Watertown and Sacketts Harbor Railroad Company, and that the defendants had been relieved therefroin. This anomalous result seems to have been drawn from the following facts. The railroad corporation was organized pursuant to the general railroad act. That statute authorized them to construct their railroad upon and across the street mentioned, with the assent of the defendants, but not without such assent; and it required the railroad company to restore the street to its former state, or to such state as not unnecessarily to have impaired its usefulness. The defendants formally consented to the construction of the railroad across the street, subject to the charter, by-laws and ordinances of the defendants, and to the maps and profiles then on file, upon the railroad company’s complying with the general statutes in regard to crossing streets, and under that consent the railroad was constructed across the street. The immediate cause of the plaintiff’s injury, appears to have been a pile of curb or gutter stones, against which he was precipitated; and it may be inferred that the railroad company made the pile, although that fact was not distinctly proved. Nor does it appear whether the railroad company failed to comply with the restrictions imposed by the defendants as a condition of permitting them to cross the street. Assuming, however, as was done by the court below, that the dangerous condition of the street was attributable to the railroad company, and that such fact made it liable to the plaintiff, it does not follow that the defendants were exonerated from liability to the plaintiff. On the contrary, the rule is, that all wrong-doers are severally liable to the party injured. A municipal corporation may not be liable for an injury caused by a nuisance in a street, created without its authority or sanction, of the existence of which it had no notice. But the nonsuit in this case was not put upon that ground, nor does that question arise here, for the reason that there was, at least, some evidence from which the jury might have been warranted in finding that the defendants had notice of the nuisance which caused the injury to the plaintiff. The only ground on which the nonsuit could be sustained, would be that on which it was placed by the court below,, namely, that the railroad company being authorized by the legislature to do what they did, and being charged with the duty of restoring the street, the control of the defendants over the street was suspended, and their duty in respect thereto was superseded to a corresponding degree. But this position is untenable. The acts which the railroad company were authorized to do, were not necessarily incompatible with the duty of the defendants to keep the streets in a safe condition. The effect of the legislative authority was merely to render acts legal, which, without it, might have been illegal. It contains no language which expressly, or by reasonable implication, modifies or abrogates the duty which the law had cast upon the defendants, or the liability consequent upon a neglect of that duty. The duty and liability therefore remained. It is the common case of the doing of a lawful act which renders a street unsafe, such as making excavations in it for water-pipes, drains, gas-pipes, areas, etc. These privileges, if not incident to ■ ownership, require only the authority of the municipality to make the exercise of them lawful. Bnt it is, nevertheless, the duty of the municipality ' to protect the citizens against danger arising from the negligent exercise of them. In case injury ensues from such cause, he who makes the excavation and the municipality are each liable. So in this case, if the acts of the railroad company constituted a nuisance, they and the defendants are each liable for their own breach of duty; the former for placing a nuisance in the street, and the latter for not removing it thereform, or affording the necessary protection against danger, by means of lights and barriers. We cannot, on this appeal, determine the liability of the railroad company; but if the injury of which the plaintiff complains, was caused by their neglect of duty, they are primarily liable, and, in case of a recovery against the defendants, they will have a right of action against the railroad company. But the fact that the railroad company is liable to the plaintiff, and may be liable ultimately to the defendants, does not absolve the latter from their liability to the plaintiff, No reason is perceived why it should have that effect. The defendants were adequately protected in the first instance, by the power which they possessed of imposing such reasonable conditions as they deemed proper, upon the railroad company. By this means, they were enabled to regulate and control the manner of doing the work,.and thus to insure the safety of the street, or to get an indemnity against all liability for injuries happening by reason of its having-been rendered unsafe. If they failed to exercise those powers, it was their own fault. Furthermore, the remedy over will, in most cases, be found an effectual shield against undue responsibility. We are of opinion, therefore, that nothing has been shown, which makes this case an exception to the general rule of law, governing municipal corporations, before stated.

Upon the other questions presented on the motion for a nonsuit, we agree with the court below, that there was enough in the evidence to require the submission of the case to the jury.

The judgment must be reversed, and a new trial granted, with costs to abide the event.

Present — Mullir, P. J., Smith and Gilbert, JJ.

Order and judgment reversed, and new trial granted, costs to . abide the event. 
      
       Hutson v. Mayor, 5 Seld., 163; Conrad v. Trustees of Ithaca, 16 N. Y., 158; Weet v. Brockport, id., 161; Congreve v. Smith, 18 id., 79; Davenport v. Ruckman and The Mayor, etc., of New York, 37 id., 568.
     
      
       Laws 1850, 323, § 28, sub., 5; 3 Edm. Stat., 627.
     
      
       Robbins v. Chicago, 4 Wall., 657; S. C., 2 Black, 418; City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y., 476.
     
      
       Dill. Mun. Cor., §§ 794, 795, 796 and cases cited; Wendell v. City of Troy, 39 Barb., 329; S. C., 4 Keyes, 261; cases last above cited.
     