119 N.E. 395 | NY | 1918
This is an action in which plaintiff has recovered damages by reason of injuries sustained under the following circumstances: Defendant Buckley's intestate owned a lot on Homecrest avenue in that part of the city of New York which was once the town of Gravesend; on the rear of the lot, on East Thirteenth street, was a hedge about three feet high through which was an opening for the driveway to the barn. Sometime prior to July 14, 1911, Buckley replaced two iron posts that had for some years been on the sides of this entrance with two ornamental brick posts or columns, nine feet apart, about five feet high and about one foot four inches square. The width of the street is sixty feet. The hedge and the posts stood entirely within the street, about five feet from the lot line. Outside the hedge was a tramped-down dirt path, eight feet six inches wide, then a wooden curb, then the ordinary rough dirt roadway. Between the posts were swung two chains, suspended on hooks. One chain swung about one and one-half feet from the ground; the other about two and one-half feet. Similar conditions exist elsewhere in the neighborhood. The plaintiff, a little girl five years old, with other children about the same age, was swinging on these chains when one of the columns fell over upon her and broke her leg.
The case was tried on the theory that defendant Buckley would be liable as matter of law as for the construction and maintenance in the highway of a nuisance attractive to children as an instrumentality of play and that the defendant city of New York would be jointly liable if it had sufficient notice of the existence of the structure. This left little to the jury except the question of damages, plus the question of notice in the case of the city. We think that the courts below have erred in the application to this case of the doctrine of strict liability for dangerous obstructions of the highway. *191 The two posts were not in themselves a dangerous obstruction of the street. First, they were not an obstruction to the main-traveled way, either of the footpath or the roadway. Although they were within the street lines, they did not interfere with those who passed by on their lawful occasions.Secondly, if regarded technically as obstructions, they were not dangerous per se. The danger resulted, not from placing the posts in the highway, but from so placing them that injury would be the natural result.
In Kunz v. City of Troy (
These were cases of actual obstruction of the driveway or sidewalk of frequented streets and such a misuse of the street as constituted a nuisance per se. We have before us a bit of rusin urbe, with a hedge marking the actual although not the legal street line. To the situation *192 of the defendants in the case before us a different principle applies, which does not weaken the authority of the cases cited, although it may seem at variance with the language used in portions of the opinions.
Here the proper test is this: Should the defendants have known that there was danger that these posts would fall when children swung on the chains (Harrold v. Watney, [1898] 2 Q.B. 320, 324), or have had reasonable ground to apprehend some accident from their presence in the street? (Frank v. Village ofWarsaw,
The judgment appealed from should be reversed and a new trial granted, with costs to abide the event.
HISCOCK, Ch. J., CHASE, HOGAN, CARDOZO, McLAUGHLIN and ANDREWS, JJ., concur.
Judgment reversed, etc.