127 N.E. 312 | NY | 1920
The action is to recover damages for personal injuries. The plaintiff was thrown from a carriage while riding along a street of the defendant because the horse, through fright at a pile of rubbish within the street, ran away. The action has been twice tried. The Appellate Division reversed the judgment in favor of the defendant resulting from the former trial and said that a nuisance was created by the pile of rubbish with the consent and on the invitation of the village authorities. (Lyman v.Village of Potsdam,
The controlling facts most favorable to the plaintiff the jury might have found to be: The board of trustees of the defendant, an incorporated village of about forty-two hundred inhabitants, by a resolution adopted and published appointed May 14, 1914, to be "clean-up day" and invited residents to put out on the streets, not earlier than May 13, the rubbish they would dispose of to be drawn away by the village. Pursuant thereto the pile of rubbish in question was deposited in the morning of May 14 upon Cedar street by the owner of the abutting property. Cedar street at that point consists of a central driveway for vehicular traffic thirty-two feet wide, a contiguous grass plot upon either side of the driveway thirteen feet wide abutting a sidewalk four feet wide. The rubbish, consisting of a water closet reservoir and bowl, a box about two feet long and eighteen inches wide, a cast-away Christmas tree about five feet long and, perhaps, a couple of barrels, was placed upon the grass plot near the driveway. An end of the tree may have protruded into the driveway a few inches. The rubbish was a pile from four to six feet in width and length. On the morning of May 14 the village employees with teams and wagons began and completed the following *403 day the drawing away of all the rubbish deposited in the village streets. "Clean-up day" had been a practice of the village since 1909. At about six o'clock in the afternoon of May 14, the plaintiff and her husband, residents of the village, after driving for three-quarters of an hour in other streets of the village, were driving along Cedar street. The horse, of ordinary gentleness and steadiness, frightened by the pile of rubbish described, "lunged" and ran. The plaintiff was thrown from the carriage and injured. About an hour before the accident the president of the board of trustees drove past and saw the rubbish.
The pile of rubbish was not an unlawful obstruction per se to public travel on the street. In any arrangement or aspect of the facts it was not a public or private nuisance as a matter of law. While, as a matter of course, the grass plot was a part of the street, the owner of the abutting property was authorized to place rubbish upon it, under the conditions stated, and for two reasons: (a) The invitation of the board of trustees of the defendant so to do was not ultra vires or nugatory. The streets of the defendant were under the exclusive control and supervision of the board (Village Law [Cons. Laws, chapter 64], section 141), which was empowered to cause the streets to be cleared of rubbish or other accumulations on any part of them, at the public expense (section 164). The board constituted the board of health of the village with all the powers and subject to all the duties provided by the Public Health Law (section 85), and was obligated to make an annual sanitary survey and maintain a continuous sanitary supervision over the territory within their jurisdiction. (Public Health Law [Cons. Laws, chapter 45], section 21-b.) It is a matter of common knowledge and, hence, of judicial knowledge that the removal, universally, from the homes of the village of refuse, garbage and rubbish would promote sanitary conditions. (b) The property owner had the right, as *404
reasonable necessity or convenience induced, to place and have temporarily within the street for the purpose of its disposal, rubbish. The public right to the unobstructed use of a street in all its parts is not absolute but relative. The right may be qualified by means of permanent obstructions located at the sides of the streets, fulfilling useful public purposes consistent with, although other than, those of transportation and traffic, provided unobstructed passageways of ample width are left (Dougherty v. Village of Horseheads,
The defendant did not authorize or directly or indirectly cause the pile to consist of the articles which constituted it or to have the form and appearance it possessed. The invitation of the defendant did not express or imply the kind of rubbish to be deposited or manner of piling or that a householder had license or permission to create an unlawful obstruction or defect in the street. It did not suggest or contemplate any act or result intrinsically dangerous. There are very many articles of rubbish which may be placed temporarily at the side of the street and not make it unsafe or defective. The right to use the street for the general purpose in question existing, the village is not primarily and directly responsible for the misuse or abuse of the right. The defendant cannot be held liable as the creator of the pile. (Masterton v. Village of Mount Vernon,
That the defendant was not an insurer of the safety of travelers upon the streets is, of course, unquestioned. Reasonable care in the construction and maintenance of the streets of the village was the measure of duty resting upon the board of trustees. Liability of the *406
village rests upon a violation of this duty. Inasmuch as a new trial of the action must be granted, a consideration of the evidence before us and a determination of its effects would be neither useful nor proper. In this opinion we have disposed, under the facts presented, of the question of the legitimacy and reasonable necessity of depositing rubbish upon the grass plot by the owner of the adjacent residence for the purpose of removal by the board of trustees, because the evidence concerning that point cannot probably be materially changed. Ordinarily it is incumbent upon a defendant charged with creating a nuisance in a street or with negligence in a street use to show that the use was reasonably necessary. (Callanan v. Gilman,
The judgment should be reversed and a new trial granted, with costs to abide the event.
HISCOCK, Ch. J., CHASE, CARDOZO, POUND, CRANE and ANDREWS, JJ., concur.
Judgment reversed, etc.