There are two insuperable objections to the right of the plaintiff to recover in this action. First, the immediate and direct cause of the injury to the plaintiff was his own imprudent and negligent driving upon the pile of rubbish by which his carriage was overturned. If the street was so obstructed from any cause that two vehicles could not pass each other at that point, he should, in the exercise of that care and caution which is required of every one, have waited until the way was clear. In attempting to pass another carriage at that place in daylight, with the nature and extent of the encroachments upon the street fully visible, by driving over the obstruction, he did so at his peril. The defendants should not be held responsible for his want of judgment or recklessness. In actions of this kind, a party seeking redress for injuries should be held *Page 461 to the exercise of ordinary care and skill, even if not required to be entirely without fault. Secondly, the defendants are not chargeable for any injury resulting from an obstruction of a public street not caused by their own act or the acts of their authorized agents, especially when notice of the obstruction is not brought home to the city authorities. A duty is devolved upon the common council of New-York in their legislative capacity to prevent by adequate laws all improper encroachments upon the highways, and to provide for the removal of all obstructions, as also to prevent other nuisances which might injuriously affect the health, property or rights of the citizen. This obligation is an imperfect obligation, and for its non-performance an action will not lie at the suit of an individual who may sustain injury by the omission. A municipal corporation, in the exercise of its functions and the performance of the duties imposed upon it by law, is responsible for the performance of those duties in a proper manner and with due skill and care; and if by the improper, unskilful or negligent manner in which it performs an act lawful in itself, an injury ensues to an individual, an action will lie against the corporation for such injury. A corporation is held to the exercise of that degree of skill and care in the performance of any act within the legitimate scope of its duties which would be exacted from an individual; and in the use and occupation of its property it is bound by the same maxim,sic utere tuo ut alienum non lœdas, and is liable for an improper use by which individuals are injured. (Brower v. New-York City, 3Barb., 254.) Hence in The Mayor, c. of New-York v. Furze (3Hill, 612), the corporation, having constructed sewers, were held liable for an injury sustained by an individual, occasioned by the improper and insufficient manner of their construction and their want of repair. The duty of keeping in repair resulted from their construction, and was absolute. No other person was authorized to interfere, and the omission *Page 462 to repair was the neglect of a positive duty. But I do not understand that an action could have been sustained for not constructing the sewers originally. So the omission of some positive duty imposed upon a corporation in respect to their own property, and which is solely the duty of the corporation, may authorize an action at the suit of an individual who has sustained some injury peculiar to himself; and so in Henly v.The Mayor and Burgesses of Lyme (5 Bing., 91, and 1 Bing.N.C., 222), the defendants were made liable for the non-repair of a sea wall according to the terms of a grant. But in the case before us, the placing and continuing the obstruction in the street was the act of a third person, a stranger to the defendants, and for whose acts they were not chargeable. The primary duty of removing the encroachment was upon him who placed it there and not upon the defendants. The duty of the defendants in the premises was rather executive, to compel an observance of the ordinances of the city by the wrong-doer, than themselves to remove the obstruction. If the encroachment upon the street was unlawful, it was a nuisance, and the remedy palpable and easy. 1st, Any citizen might lawfully abate it by his own act. (Bac.Abr., Nuisance, C; Wetmore v. Tracy, 14 Wend., 250.) 2d, The individual who created and continued the nuisance was liable to indictment. 3d, An action would lie against the wrong-doer at the suit of any individual who should sustain any damage peculiar to himself and which was not common to the public. (Pierce v.Dart, 7 Cow., 609.)
There is no precedent for the action, and no principle upon which it can be sustained. The judgment of the superior court should be affirmed.
All the judges concurred in the opinion of DENIO, J.
SELDEN, J., said that if the corporation had had notice of the obstruction, he would have held them liable.
Judgment affirmed *Page 463