Laut v. City of Albany

Kiley, J.:

On the afternoon of July 30, 1918, the defendant the city of Albany by some previous arrangement had with the defendant the Standard Oil Company placed upon the macadam surface of one of its streets, known as the Southern Boulevard, oil, liquid tar or road material, generally used for that purpose. This boulevard runs approximately north and south; the width is given from fifty to eighty feet; the macadam is eighteen feet wide laid down in the center of the boulevard. It was not lighted. Toward the northern end of this street and the macadam there is a slight curve for some little distance, and the surface slopes from the west toward the east. The oil or substance so put upon the street covered a space of about one hundred feet in length and all of the macadam surface except a strip of about two feet along the eastern edge. The plaintiff, between eight and nine o’clock in the evening of the day the repairing was done, approached this street from the north going south; when he reached the curved and oiled macadam on the westerly side, his proper side to travel upon, his car commenced to slide; he put on the brakes, but that did not stop the car; it continued to skid or slide from the western side to the east until it came to the dry eastern edge or dirt part of the surface. While plaintiff’s car was standing where it had stopped, a car coming from the north toward the south slid or skidded *755in like manner as plaintiff’s car had done, and collided with plaintiff’s car, striking it in the rear and causing the damage complained of here. Plaintiff has sued the city and the Standard Oil Company. The negligence complained of is alleged in the complaint as follows: “ On information and belief, that on or about July 30, 1918, the defendants negligently and carelessly covered the entire surface of said boulevard with a great and unusual quantity of liquid tar, or road material, to a depth of nearly an inch without covering said tar or material with sand or gravel, and without leaving any space for automobiles to pass over said boulevard without passing over and through the said tar or material, and that the said defendants negligently and carelessly permitted the said material to be and remain on the driveway of said boulevard in the manner aforesaid and in such a way as to make it likely that automobiles would slip and skid, and in such a manner as to make it very dangerous for automobiles to pass over the same.” Defendants put in separate answers; there was but one trial; and it was stipulated that objections and exceptions taken by either of the attorneys, for the respective parties should apply to both defendants. The verdict rendered was against the defendants jointly. Errors were permitted in the reception of evidence to which objections and exceptions were duly taken; also errors were committed by the court in his charge to the jury, which call for a reversal of the judgment. Superintendent Bender, after testifying that it was not customary to cover the oil with crushed stone, where No. 4 oil was used, was asked by plaintiff’s counsel, referring to the next day after the accident: “Did you cover this when you go out there?” Objection and exception was duly taken, overruled, and witness answered that he did so under instructions from his superior. “ Q. When you saw it the next day you thought the situation was such you thought it advisable to put crushed stone on top? ” Objection and exception were overruled, and witness answered in the affirmative. This presents reversible error. (Getty v. Town of Hamlin, 127 N. Y. 636, and cases cited; Iannone v. United Engineering & Construction Co., 149 App. Div. 367; Causa v. Kenny, 156 id. 134; Murphy v. McMahon, 179 id. 837.) There are cases where acts and conditions after the accident *756may be shown, as for instance, showing jurisdiction or control; or showing a condition that by its nature must have existed before the accident, illustrated in the case of Teasdale v. Malone Village (17 App. Div. 185). The court submitted to the jury the question as to whether the material (oil) used was proper; used the expression twice in his charge, stating that plaintiff claimed it was improper. No such negligence is alleged in the complaint, nor any evidence of improper material used appears in the record. On the other hand, it appears that the oil or substance used was that in common use for road purposes. The charge thus made was excepted to and presents error. The question was specifically submitted to the jury on a refusal of a request to charge, thus magnifying its supposed importance. The court charged at the request of the city, appellant, that the relation of master and servant did not exist between the defendants; a request to charge that the defendant the Standard Oil Company was an independent contractor was refused. It was either the servant or an independent contractor. The cases where both parties can be charged have to partake of the nature of a copartnership or joint enterprise, entered into for mutual profit depending on the success of the venture, as illustrated in Stroher v. Elting (97 N. Y. 102). As the case stood at the time of the request the defendant the Standard Oil Company was an independent contractor; it was error to refuse to so charge. (Charlock v. Freel, 125 N. Y. 357; Uppington v. City of New York, 165 id. 222; Frank v. City of Rome 125 App. Div. 141.) While my associates do not agree with me, I think the question of notice to the appellant .city was not properly disposed of. Section 244 of the Second Class Cities Law provides that the city must have actual notice of the defect, or such defect must have existed so long as to charge it with constructive notice. That provision applies to the facts, circumstances and parties involved here. (MacMullen v. City of Middletown, 187 N. Y. 37.) It is conceded or at least appears that the appellant city of Albany did not have actual notice. Did the defect exist so long as to impute constructive notice to the city? This oil was put upon the street in the afternoon of July thirtieth, and the accident happened between eight and nine o’clock that evening; the first notice defendant *757city had was at ten o’clock that evening. This is not sufficient-time upon which to hold that defendant had constructive notice. (Cohen v. City of New York, 204 N. Y. 424; McKee v. City of New York, 135 App. Div. 829.)

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

All concur, except John M. Kellogg, P. J., dissenting, with a memorandum.