
    Fitch v. Mayor, Etc., of New York et al.
    
    
      (Superior Court of New York City, General Term.
    
    May 7, 1888.)
    1. Municipal Corporations—Control .op Streets—Construction op Car Track.
    Where a street car, from which plaintiff had alighted at a turn-table, was so negligently turned before plaintiff could move a safe distance away th'at it struck and injured her, the city’s permission to locate the turn-table so that a part of a car in-turning would pass over the sidewalk did not render the city liable, as the accident would have happened had the location been such that the car would turn wholly between the curbs.
    2. Same—Location of Turn-Table—Interference with Sidewalk.
    The railway company having the right to a turn-table in the locality, the city in’ fixing the place exercises a discretion which is not reviewable by the courts, the sidewalk having no right to freedom from encroachment superior to that of the1 carriage-way.
    Appeal from jury term.
    Action by Abbie C. Fitch against the Mayor, etc., of New York and the South Ferry Railway Company, for personal injuries. Plaintiff had judgment, and the city appealed.
    Argued before Sedgwick, C. J., and Freedman, J.
    
      Henry R. Beekman and D. J. Dean, for appellant. Edwards S. Clinch, for respondent.
   Sedgwick, C. J.

The action was for damages for personal injuries caused, as the complaint alleged, by the negligence of the appellant. The appellant’s co-defendant was a street-railway company using horses, and called the “South Ferry Railway Company. ” It had a terminus at or near the corner of Church street and Yesey street. In Church street, at the terminus, a turn-table was inserted. In the ordinary course of tilings a car would go upon this turntable. Passengers would step from the platform of the car to the sidewalk. The car would then be turned.. In turning, the platform of the car would, move over the sidewalk, overreaching a distance of two or three feet. The1 plaintiff had been a passenger on a car of the company. She had alighted on the sidewalk. The car had been so negligently turned that the platform had struck her before she could move a safe distance. She had been knocked down, and received severe hurts. There is no doubt that the company was liable. The question on this appeal relates to the liability of the city. The act incorporating the company (Laws 1874, p. 697) provided “that said railway shall be subject to such reasonable rules and regulations as the common council of the city of New York from time to time may prescribe.” The city charter (Laws 1873, c. 335) provided that the common council shall have power to regulate the use of streets by cars, etc., to regulate the use of sidewalks, to prevent encroachments upon and obstructions to streets, and to authorize and require the commissioners of public works to remove the same; but they shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, “except the temporary occupation thereof during the erection, etc., of a building,” etc. The learned counsel for the respondent claims that using the sidewalk as a place over a part of .which the platform of the cars would move was an obstruction or an encroachment of the sidewalk, as it was continuous, although intermittent, to the constructive knowledge of the city. It is not necessary, for the purposes of this decision, to deny the validity of the position. The further argument is that under the statutes that have been cited it was the duty of the city to-have made some regulation, or to have required that the company should not operate its road so as to involve the moving of the platforms of cars over the sidewalk.

Whatever power or duty the city had or was under, neither was of a kind that could impair the statutory right of the company. The complaint and the charter show that the company had a right to the terminus at or near Church and Yesey streets. The city, at the most, could only regulate the employment of their right. The complaint did not suggest, nor did any claim of the plaintiff upon the trial, that the city had the power to prevent the use of a turn-table at all, or, what would have been the same in effect, of cars to be drawn by one horse, or that did not need to be turned. The case does not-present the point. The proposition is that the city should not have allowed the incumbrance of the sidewalk. As to this it must be said that the city was forced to yield to the right of the company to have the turn-table at some point there, either in the roadway so far that, in turning, the platform would not be at all over the sidewalk, or at a point nearer the sidewalk. In either •case there would be an obstruction of the highway. The sidewalk has no right to a freedom from encroachment superior to the street-way’s right. The city was called upon to exercise a discretion of a judicial nature as to the place where the obstruction should be. This exercise of discretion cannot be reviewed by a court. I further think these considerations are not relevant to the ease here, as it appears that the company had a right to a turntable either where it was, or at some other place in the street-way. The accident did not happen because the place where the plaintiff alighted was a sidewalk. It would have happened if the turn-table had been so far from the curb that the plaintiff would have stepped upon the street-way. For these reasons the city was not liable in this action. Judgment reversed, and new trial ordered, with costs to abide event.

Freedman, J., concurs.  