[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 562 The plaintiff recovered a judgment at the circuit for $10,000 for personal injuries received by her in consequence of an obstruction in Yonkers avenue one of the public streets in the city of Yonkers.
The obstruction consisted of a heap of dirt and rocks thrown out from a trench dug for the purpose of laying water pipes. The night of the accident was very dark and misty. The plaintiff was riding with her husband in a wagon drawn by one horse going east, and coming in contact with the heap of dirt and stones the wagon was overturned and the plaintiff injured.
The evidence as to the existence of lights at or near the place of the accident was conflicting, but the jury were authorized to find, and on this appeal we must assume they did find, the facts in conformity with the plaintiff's proof.
Upon that assumption there was no light within one hundred feet of the place of the accident, no guard or barrier around *Page 563 the heap of dirt, or the open trench, and nothing to warn the plaintiff or her husband of danger. We are of the opinion that the case in all its aspects was one for the consideration of the jury.
The point that proof was admitted which was at variance with the cause of action alleged in the complaint is not well taken. The cause of action was negligence on the part of the defendant in permitting one of the public streets of the city to be in a dangerous condition. The facts which constituted the negligence were alleged to be the excavation of a dangerous hole or trench and throwing up a dangerous embankment therefrom in the street "by and under the direction of defendant" and in suffering the trench and embankment to be without protection or notice to travelers on the night of the accident.
These facts were denied by the answer, and under the issue thus made the plaintiff was entitled to recover by showing, to the satisfaction of the jury, either a dangerous obstruction created by the city and left unguarded or an obstruction created by some third person and left unguarded by the city after notice of its existence. Upon the latter branch of the case all the evidence relating to the condition of the street, and the absence of lights in the night-time prior to the accident was admissible as it tended to show a condition of affairs from which the jury could infer that the city had or ought to have had knowledge of the dangerous condition of the street.
The evidence as to the non-existence of lights at the trench after the accident was confined to the night in question, and was admissible to contradict the testimony of the contractors that a light was there. It may not have been strictly in rebuttal but its admission was discretionary with the trial court.
Even if the appellant's contention, that it was not responsible for the negligent acts of the water board, was sound, that would not relieve it from liability in this case.
The dangerous condition of the street had existed for two months or more before the accident, and the defendant must *Page 564 be deemed to have had knowledge of it. Its duty was to keep the streets in a safe condition for public travel, and it was bound to exercise reasonable diligence to accomplish that end, and the rule is now well established to be applicable whether the act or omission complained of and causing the injury is that of the municipal corporation or some third party. (Nelson v. Vil. ofCanisteo, 100 N.Y. 89.)
Where public or private improvements are being made in a street, it is the duty of the city to guard and protect them so as to protect travelers on the street from receiving injury therefrom. (Turner v. City of Newburgh, 109 N.Y. 301.) And if necessary to prevent accidents it should, by some barrier, close the street against the public so that no harm may happen if the work on the street is delayed. (Russell v. Vil. of Canastota,98 N.Y. 496.)
A person using a public street has no reason to apprehend danger, and is not required to be vigilant to discover dangerous obstructions, but he may walk or drive in the daytime or night-time, relying upon the assumption that the corporation whose duty it is to keep the streets in a safe condition for travel have performed that duty, and that he is exposed to no danger from its neglect.
Although the street where this accident happened had been in a dangerous condition for weeks, the proof does not show the slightest effort on the part of the city to warn travelers of its condition. It appeared to have relied upon the contractor to maintain the warning lights at the excavation, which, under his contract, he was bound to do. But the city was not absolved from its liability by this provision of the contract. (Turner v.City of Newburgh, supra.)
We think, however, that the board of water commissioners was one of the instrumentalities of the government of the city, and that the defendant is liable for its negligent acts.
In Ehrgott v. Mayor, etc. (96 N.Y. 273), this court said: "To determine whether there is municipal responsibility, the inquiry must be whether the department whose misfeasance or nonfeasance is complained of is a part of the machinery for *Page 565 carrying on the municipal government, and whether it was at the time engaged in the discharge of a duty or charged with a duty primarily resting upon the municipality."
The duty of supplying the citizens of Yonkers with water is by statute made a municipal duty, and the board of water commissioners exists for that purpose.
While this board is created by special statute it is recognized as a department of the city government in the charter, and charged with the duty of "making the necessary surveys, etc., and preparing a general plan and system of sewers for the city," also "of preparing and approving specifications for constructing all sewers, drains, wells, fire cisterns, laying water pipes and erecting hydrants."
The board exists solely for the benefit of the city. It can own no property and do no act that has not reference to the well-being of the city. It is given the power to purchase and acquire land, but the title, when acquired, vests in the city. For its contracts the city is liable and judgments recovered against it are judgments against the city. When the water rents collected by it are more than sufficient to meet its expenses the surplus must go to the benefit of the city. It is denominated the "board of water commissioners of the city of Yonkers." It is not an independent body acting for itself but is a department of the city and one of the instruments of the municipal government. Being such, when engaged in digging the trench for the purpose of laying water pipe in Yonkers avenue, it was engaged in the discharge of a municipal duty, and it was obligatory upon it, in so doing, to so protect and guard the work that it should not endanger persons using the street, and if that was impossible, with a due and diligent prosecution of the work, the street should, by suitable barrier, have been closed against the public.
For its failure so to do and for injuries resulting from such failure the defendant is liable. (Erghott v. Mayor, etc.,96 N.Y. 265; Walsh v. Mayor, etc., 107 id. 220; Barnes v.Dist. of Columbia, 91 U.S. 540; Brusso v. City of Buffalo,90 N.Y. 679.) *Page 566
None of the exceptions to the charge or the learned judge who presided at the trial are well taken and the judgment should be affirmed, with costs.
All concur, except HAIGHT, J., not sitting.
Judgment affirmed.