[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 47 The plaintiff was injured by coming in contact with a bridge or tramway, which was placed across the street through which he was driving the team under his charge. The officers of a municipal corporation are vested with authority as commissioners of highways, in regard to the streets within its limits, and as such are agents of the *Page 49 corporation so as to make the latter civilly responsible for acts of omission or commission according to the law applicable to master and servant. (Conrad v. The Trustees of the Village ofIthaca, 16 N.Y., 158; Weet v. The Trustees of Brockport, id., 161; Wyatt v. Trustees of Rondout, 44 Barb., 385; Todd v. The City of Troy, 61 N.Y., 506.) If they fail to keep the streets in a safe condition for public travel, a person who suffers damage and is free from fault can maintain an action against the city for damages sustained by reason of their neglect of duty.
In the case at bar the bridge or tramway which was the occasion of the accident appears to have been erected by the owners of a coal yard, and there was evidence tending to show that the land upon which the street was located belonged to the State and not to the city. Conceding that such was the case, we think that under the evidence presented upon the trial the defendant was not relieved from liability. The land had been appropriated by the defendant, graded, paved and sidewalk put down by its authority, and was used as a public street in such a manner as to hold out ostensibly to the public that it was such a street, and as to invite them to travel upon it. To all appearances, it being uniformly graded and improved with gutters and pavement, it was one of the thoroughfares of the city, open and free to all, which the municipal authorities assumed the burden and duty of improving to the same extent and in a similar manner as was done in regard to other public streets within its boundaries. Under such a state of facts the defendant having assumed to perform the same duty in regard to it as if it had been formally and lawfully laid out and adopted was bound to the same degree of vigilance as was imposed upon it, in reference to other streets within the limits of the corporation. It matters not, we think, that the tramway was erected and used by the owners of the coal yard, and it is quite sufficient that the defendant had assumed to and did exercise the right to use the land as a street, and to control the same by making *Page 50 improvements, and as bearing on the question after the injury was committed, directed and caused the removal of the tramway as dangerous to life and property, to fix the liability of the corporate authorities. It is claimed that the acts of the defendant to which reference has been had, did not destroy the right to use the tramway, or impose any other duty than to keep the pavement in repair; that it did not require the removal of the same, and that the defendant was not subjected to any liability arising from negligence in not removing the same. We think that the defendant was bound to exercise the same degree of care and vigilance in reference to this street, as if it had owned the right of way, and it had been lawfully set apart as one of the streets of the city, and that it was obligated to protect the public from all injuries which might arise from any neglect to take proper charge of the same.
The authorities referred to by the defendant's counsel, do not uphold a position adverse to the rule laid down as will be seen by a reference to the leading case which is cited to sustain the position contended for.
In The Mayor, etc., v. Cunliff (2 Comst., 165), which is especially relied upon by the defendant, the action was brought for injuries sustained by the falling of a bridge, which was built in pursuance of a contract with the corporation under a statute not constitutionally passed by the Legislature, which fell in by reason of the negligent construction thereof. It appeared that the "Pier Company" of said city had the care and control thereof and made repairs upon it, and paid a sum awarded to the corporation under the provisions of the act referred to for the improved value by reason of the reconstruction thereof by the corporation. It was held that, in the performance of a public work, the law must have imposed a duty or conferred an authority to do such work. It will be noticed that the defendant had built the bridge under a statute which was declared to be unconstitutional, and that, at the time when the accident happened, the bridge was not under the control of the defendant, but of the pier *Page 51 company. It will thus be seen that no duty was imposed upon the defendant to build the bridge in question, and as the law conferred no authority, there could be no liability. Some remarks are made in the opinion of CADY, J., to the effect that officers of a corporation are limited in their legitimate action to the powers conferred upon them by their charters. This rule might well apply when there was an entire want of powers and the corporate body was acting in reference to a matter which was entirely beyond its control and authority, and it was manifest that another party had the control of the bridge, which was defectively constructed, and by means of which defect the accident occurred. But when the corporation is vested with ample power to perform the act done, such as the laying out of a street, it cannot well be claimed that they are relieved from liability from injury for their neglect, because the act was not done strictly according to law. If such a rule should prevail, the slightest error in acquiring a right to a public street would leave a party injured by the negligence of the corporate authorities to take care of and keep the same in repair, without a remedy or means of redress. Having the power to lay out streets, the omission to do it lawfully does not exonerate the corporation from liability from negligence when its officers assume to hold out to the public that a street is located within its limits, and they are invited to use it and to travel upon it. Such a rule would compel a traveler to determine for himself whether the street was lawfully laid out, and is not upheld by the case cited or supported by authority.
Although the precise question discussed has never been directly presented in this State, the authorities are numerous which sustain a contrary view, as will be seen by a reference to the cases. In Mayor v. Sheffield (4 Wall., 189), it is held that where the authorities of a city or town have treated a place as a public street, taking charge of it and regulating it as they do other streets, and the injury occurs by reason of negligence, the corporation cannot, when sued for such injury, defend itself by alleging irregularity in the proceedings *Page 52 or a want of authority, in establishing the street. The rule is well settled that the act of the city in assuming authority to control the land as a street renders it chargeable with the same duties, and imposes upon it the same liabilities, as if it had been lawfully laid out, and it is estopped from questioning that it was a lawful road or street. (Houfe v. Town of Fulton,34 Wis., 608; Stark v. Lancaster, 57 N.H., 88; City of Aurora v. Colshire, 55 Ind., 484; Phelps v. City of Mankato,23 Minn., 276.) In the last case cited it was held that it was immaterial whether the street became such by formal acceptance and user by the public so far as regards the duty of the city to keep it in safe condition. It follows that the defendant, by adopting the land and allowing it to be used as a street, holding out to the public that it was such street, and by repairing and improving it as such, was bound to exercise the same degree of care as if it had been laid out strictly according to law, and it cannot escape liability for the alleged reason that it had no control over it and the land belonged to the State.
It is urged that, even if the resolution of the common council and their acts in pursuance thereof were sufficient to establish a street, yet it was not legal negligence to omit removing the tramway. The ground upon which this position is asserted is, that the space between the street and the tramway was more than was necessary for ordinary carriages. It is undoubtedly true that the vehicle which the plaintiff drove was in height somewhat unusual, and beyond that which ordinarily was employed for any purpose. But this does not furnish a sufficient excuse in the corporate authorities of a city for obstructing the passing of carriages of unusual and extraordinary proportions and establish negligenceper se. It is well understood that such vehicles are used for the purpose of attracting attention in large cities and elsewhere, of those who may desire to attend shows and exhibitions of the character of the one which was to be exhibited in the city, when the accident occurred, and while no definite rule can be laid down to meet all cases, we think that it was for the *Page 53 jury to determine, under the circumstances, whether the vehicle used was of such dimensions, as to be suitable and proper to be used in a populous city upon a street established for the common benefit and convenience of the public at large. There are no doubt cases where archways and bridges exist in cities over streets, under the control of the authorities, from which vehicles of this description are properly excluded, and they would lawfully be regarded as obstructions; but these are well known localities, sanctioned by law or custom, which are understood by all, as not intended for any such purpose. So also in the country, covered bridges may be erected over streams for ordinary purposes, which are far too low in height to authorize the passage of vehicles or animals of an extraordinary size. (SeeTurnpike Co. v. Hoadley, 11 Conn., 464; Gregory v.Inhabitants of Adams, 14 Gray, 242.)
The question whether the plaintiff was justified in driving the team under the tramway, under the facts in evidence, was for the determination of the jury, having in view the character of the team and the nature of the obstruction, and it cannot, I think, be claimed, was improperly decided by the jury. The question of contributory negligence on the part of the plaintiff, was also for the jury. He was bound to exercise ordinary care, prudence, and capacity, and it is not clear that he did not use his faculties to the utmost extent. His attention was at the time engaged in an opposite direction from the tramway, and in taking care of his team. He cast his eye backward for the purpose of seeing that the hind part of the wagon cleared the corner, and the first he knew he was right under the bridge. It is evident that the time was very short between the period when the plaintiff looked backward, and the time when he came in contact with the bridge, but it is not so clear that the act was negligent and that the plaintiff failed to exercise proper care and caution, and to do all that was required of him as a prudent man in the management of his team. (Gillespie v. City ofNewburgh, 54 N.Y., 468.) *Page 54
The point made that the plaintiff's employers should have provided an additional man considering the character and length of the vehicle and team, was also for the jury to decide, and is not a question of law.
There was no error in the refusals to charge the several requests made by the defendant's counsel. The propositions which they present are mainly covered by the discussion already had, and do not require further examination.
Nor was there any error in any of the rulings as to the admission of evidence. The resolution of the common council as to the grade of the sidewalk, and as to the paving, were competent for the purpose of showing the acts of the defendant in assuming to control the street.
The resolution passed after the injury was also competent for the same purpose, and hence does not come within the rule laid down in Dougan v. Champlain Transportation Co. (56 N.Y., 1). The evidence offered to show that the place or street passage was opened by the State to the canal bridge was immaterial and could not affect the disposition of the case. There was no error therefore in its exclusion.
No error being found in any of the rulings upon the trial, the judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *Page 55