Hines v. City of Lockport. When a public body is clothed with power to do an act, which the public interest requires to be done, and the means of performance are placed at its disposal, the execution of the power may be insisted on as a duty, notwithstanding the statute conferring it is only permissive. When the common council of a city, or the trustees of a village, are made commissioners of highways, the duty to repair the streets becomes imperative; unless they not only have not funds applicable to that use, but have not by the charter power to raise them. Where it appeared that the charter of a city provided that $2500 of the moneys raised by the common council, might be used to defray the expenses of repairing and keeping in order the highways, &c., of the city, and that in addition to this sum, the proceeds of a poll-tax upon each male inhabitant above the age of twenty-one years, not assessed for real or personal property, should be applied to the repair of the highways; it was held that it must be assumed that funds sufficient to make all ordinary repairs of streets and crosswalks were furnished. And that, under these circumstances, it was incumbent on the city, when sued for neglect to repair, to show that there were not funds applicable to the repairs in question; and that unless a want of funds was proved, it was liable for the consequences of its neglect. A PPEAL by the plaintiff from a judgment entered upon the report of a referee, dismissing the complaint, with costs. The action was brought to recover damages for a personal injury claimed to have been sustained by the plaintiff in consequence of the negligence of the defendant, in not causing a crosswalk in the city of Lockport to be repaired. The facts are fully stated in the opinion of the court. S. W. Lockwood, for the plaintiff. James F. Titts, for the defendant. By the Court, MULLIN, P. J. It is found by the referee that the defendant, by its officers, in August, 1867, caused to be constructed, across Spring street, in the city of Lockport, a crosswalk consisting of two planks, the interior edges of which were so crooked as to leave an opening between them, across the gutter, four inches wide, and Hines . City of Lockport. several feet in length. This opening was filled when the walk was made, with a piece of plank which was kept in its place by spikes, so that when the walk was completed it was safe, and in good repair. In about a year after the completion of the walk, the planks of which it was constructed became loosened, and the piece of plank which had been put between them to fill the opening was in some way removed, and a hole left between the planks, of from four to six inches in width. This opening rendered the walk dangerous to persons passing over it, and especially so in the night. On the 30th of June, 1870, in the night time, and during a severe thunder storm, and while it was very dark, except when lighted by the flashes of lightning, the plaintiff attempted to pass along this walk, fell through, and sustained injury to the extent of $300. The walk had been in a dangerous condition for about a year, and that fact was known to the common council. The referee held as a conclusion of law, that as it was in the discretion of the common council to direct the repairs of crosswalks in said city, it was not liable because of the neglect or refusal to exercise such discretion; and he therefore ordered judgment dismissing the plaintiff's complaint. If this conclusion of the referee is a correct exposition. of the law relating to the powers and duties of the common council of Lockport, the inhabitants of that city are of all men the most miserable. The proposition comes to this: The common council may make, or cause to be made, streets, sidewalks, crosswalks, culverts, sewers and drains, and it is, thereafter, relieved from all liability in respect thereto, notwithstanding the streets and walks may be washed away by floods, the sewers, &c., fall in by reason of defective construction, or become filled for want of proper care, and the inhabitants whose business calls them into the streets at night, and who, without fault, fall into the opening in the streets or Hines v. City of Lockport. sewers, and are thereby injured, must bear the loss, because the common council have not seen fit to exercise the discretion vested in them by the charter, and cause the defects in the streets to be repaired. It rests entirely in the discretion of the common council, when a new street is to be put in condition for public use, when a new side or crosswalk is to be laid, or street paved, sewered or drained, and the manner in which such work is to be done. It is also a matter resting in discretion, whether any, and if any, what part of the work or expense of making a local improvement, shall be done or borne by the city, and how much by the persons benefited. (Laws of 1869, ch. 835, § 10.) This is, I apprehend, the extent of their discretion. The first, and one of the most important questions arising on this appeal is, whether the common council has the power to make or repair cross and sidewalks in said city. That it has the power to make and repair streets, is not questioned. A crosswalk lies in the street, and is a part of it; when it is out of repair, the person or corporation bound to repair the street is bound to repair the crosswalk, or, which is the same thing, the part of the street on which it lies must be made so that teams and persons may pass over it safely. Where there is a sidewalk on either side of the street, the crosswalk lies. between them, and within the space set apart for teams, and is intended to furnish the foot passengers a convenient passage over the gutters on each side of the street. In Graves v. Otis, (2 Hill, 466,) it was held that the commissioners of highways had control of the whole space set apart as a street; and it must follow that it is their duty to keep such space in repair. This does not mean that they are required to construct side or crosswalks; but if the latter are constructed, it is the duty of the commissioners to keep in repair that part of the street in which they lie. Hines v. City of Lockport. But the power and the duty of the corporation of Lock-port, to make and repair crosswalks, are not left to be inferred. They are expressly given and imposed by the charter. By subdivision 17 of section 8 of title 3, the common council has power to direct the making, curbing, repairing, macadamizing, paving, graveling and flagging of any of the streets, alleys, sidewalks and crosswalks in said city. The statute does not say, in terms, to whom the discretion shall be given; whether to the street superintendent or to the persons locally benefited by the work. The discretion is to be given to the superintendent in three cases: 1st. When it is the duty of the common council to do the work. (1 Charter, § 12, tit. 4.) 2d. When the work to be done is a local improvement, and the expense to be assessed upon and paid by the persons benefited. 3d. When the work is such as may be done by individuals, and they omit to do it within the time allowed for that purpose. (Charter, § 3, tit. 6.) Individuals are permitted to do such part of the work in making such local improvements as may be assessed to them by the assessors, when the work is of such description as may be done by those interested severally. (Id. § 3, tit. 6.) In this case the common council, although cognizant of the defects in the walk, gave no direction to any person or officer to repair the walk, and thus a duty clearly imposed has been as clearly neglected. Whether the city is liable to the plaintiff by reason of such omission is, a question to be hereafter considered. The proposition is repugnant to every man's sense of right and justice, that the common council of Lockport, or of any other city, can construct a crosswalk in a public street, knowingly suffer it to be out of repair until a traveler breaks a limb, or suffers some other great bodily injury by reason of defects in it, and nevertheless be exempt from all liability for such gross, culpable negligence. If the statute imposes the duty to build, and yet deprives Hines v. City of Lockport. them of the power, or what is the same thing, deprives them of the means to repair, the legislature and not the corporation is liable. But when there is no such want of means or power, if the crosswalk is built it must be kept in repair. If there is no power to repair a walk it ought not to be built, and those building under such circumstances are deserving of the severest condemnation. But if I am wrong in supposing the duty of repairing crosswalks is, in terms, imposed upon the common council, by the charter, and it has no discretion whether it will repair a walk that has become dangerous to travelers, it has, in addition to the powers mentioned above, that of commissioners of highways of towns, (§ 1, title 5 of charter;) and under their power it is the imperative duty of the common council to cause crosswalks &c. to be repaired, and if it is not done, the city is liable for whatever damages individuals may sustain by reason of such omission. The section referred to, is in the following words: "The common council shall be commissioners of highways of said city, and they may regulate, repair and ameud, alter and clean the streets, alleys, highways and bridges, cross and sidewalks, drains, sewers, wharves, docks, piers canals and slips in said city." But nothing herein contained shall prevent the improving of highways by local assessment. More extensive powers over the streets, cross and sidewalks, could not be well conferred, and the only limitation. is, that notwithstanding the power is thus given to the corporation, the expense of improving the streets may be imposed upon the persons benefited. The duty of making the improvement rests with the corporation, but the expense, instead of being a charge upon the city treasury, may be imposed upon those deriving benefit from the improvement. The language of the charter is permissive, "the com-mon council may regulate," &c., and therefore it is insisted. 383 7h 62 94a 45 |