190 N.Y. 481 | NY | 1908
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *483
This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the fault of the defendant. The complaint contains two counts, one alleging negligence, which was not relied upon at the trial, and the other a nuisance, as the ground of recovery. The action involves the liability of the defendant for an explosion of fireworks on Madison avenue, adjoining Madison square, on the evening of election day, in November, 1902, after the board of aldermen had adopted a resolution suspending *484
the ordinances relating to the discharge of fireworks, "so far as they may apply to the meetings and parades of political parties or associations during the campaign of 1902." The case is a companion to one recently decided by us relating to the same accident. (Landau v. City of New York,
Madison avenue, at the point in question, "is a wide street, bounded on the west by Madison Square, a park of seven acres, where, as well as in the adjoining streets, 75,000 people assembled to receive the election returns and witness the parade. They stood closely crowded in the park and on both sides of Madison avenue. The fireworks, consisting of mortars, bombs, rockets and the like, were arranged in six parallel rows in the middle and on the west side of the avenue, commencing about twelve feet from the curb. * * * They filled the middle of Madison avenue from Twenty-fourth to Twenty-fifth streets. The bombs were fired from mortars made of steel tubing and were of a kind that had been frequently used before without serious results." Between nine and ten o'clock in the evening some of the fireworks exploded from a cause not disclosed by the evidence and the plaintiff was injured.
The case was submitted to the jury under the instruction that in order to render a verdict for the plaintiff they "must find that there was a meeting or a parade of a political party, or a political association, and that the fireworks were discharged in connection with this parade or meeting," to which no exception *485 was taken. The trial court further charged the jury that they should "determine whether or not the fireworks that were then exposed in the city of New York constituted a nuisance," and that if they were a nuisance the defendant was liable, to which an exception was taken.
The plaintiff requested the court to charge that "fireworks placed upon the surface of a great thoroughfare, in the midst of a large city, where a vast multitude of people is assembled, and exhibited and discharged there on an extensive scale, as was done in this instance, constitutes a nuisance as matter of law." The court refused to so charge and the plaintiff excepted.
The plaintiff testified that he went to the place in question for the purpose of seeing "the election returns, the balloon and the fireworks," but no instruction was given or requested as to the effect of his presence as a voluntary spectator of the display.
The jury found a verdict for the defendant, and the Appellate Division, after unanimously affirming the judgment entered accordingly, permitted an appeal to this court, and certified that in its opinion "a question of law is involved which ought to be reviewed by the Court of Appeals."
The rule of unanimous affirmance requires us to assume, for the purpose of this appeal, that the exhibition of fireworks in question was not held in connection with a meeting or parade of a political party or association, and that there was no nuisance as matter of fact. The only question requiring the expression of consideration is whether upon the conceded facts a nuisance existed as matter of law. Twice, quite recently, we have considered the question whether a display of fireworks in a public street in the midst of a large city is a nuisance. (Speir v. City of Brooklyn,
In the earlier case the exhibition was held at the junction of two narrow streets in a compact part of the city of Brooklyn, and the damage was caused by fire resulting from the discharge of a rocket directly through a window of the plaintiff's *486
house. Chief Judge ANDREWS, speaking for the court, said: "The finding of the trial judge that the use of the street for the discharge of fireworks constituted a public nuisance is amply justified in view of the circumstances. It has been decided in some cases that the discharge of fireworks in the streets of a city or village is a nuisance per se and subjects persons engaged in the transaction to responsibility for any injury to person or property resulting therefrom. (Jenne v. Sutton,
The later case involved the display of fireworks now under consideration, where the space was ample, the danger from fire comparatively light, the management in charge of experts of high standing, the accident of unknown origin and of a kind not reasonably to be apprehended. Upon the first trial of that case the plaintiff had a verdict, which was reversed by the Appellate Division. (Landau v. City of New York,
We intimated that the exhibition might be a nuisance as matter of law, but all we decided was that the nonsuit was improper and that the case should have been sent to the jury. A similar intimation was given in another case, but the actual decision was that there was a question of fact as to the alleged negligence of the defendant. (Crowley v. Rochester Fireworks Co.,
It now becomes our duty to decide whether the exhibition, which resulted in a frightful disaster, was a nuisance as matter of law.
For time out of mind the term "nuisance" has been regarded as incapable of definition so as to fit all cases, because *488
the controlling facts are seldom alike, and each case stands on its own footing. We are not aided by the classification into public and private nuisances, because the difference between them does not depend on the nature of the thing done, but on the fact that one affects the public at large and the other a limited number only. The primary meaning of the word, suggested by its derivation, is that which injures, or, in the quaint phrase of ancient times, "that which worketh hurt." The injury may be to person or property, to health, comfort, safety or morality. It may be a crime. (Penal Code, § 385.) Courts of high standing have held that a nuisance at law, or a nuisance per se, exists only when the act done is a nuisance at all times and under any circumstances, regardless of location or surroundings. (Hundley
v. Harrison,
We think that each case must depend on its own facts for classification as a nuisance at law, or in fact, or neither. Without attempting a general definition we are of the opinion that as applied to the facts of the case before us, if the natural tendency of the act complained of is to create danger and inflict injury upon person or property, it may properly be found a nuisance as matter of fact; but if the act in its inherent nature is so hazardous as to make the danger extreme and serious injury so probable as to be almost a certainty, it should be held a nuisance as matter of law. While this definition lies on the border of the domain of fact, any definition of a nuisance at law must necessarily lie there, for it is a fact, *489 but so conclusive in legal effect as to be treated as a matter of law. Locality, surroundings, methods, the degree of danger, and the custom of the country are the important factors. The firing of a cannon loaded with grape shot, if in a city or village, would be a nuisance as matter of law; if in a remote place far from the habitations of man, it might be a nuisance as matter of fact, and if against the face of a precipice, no nuisance at all.
What were the surroundings and the degree of danger reasonably to be apprehended from the exhibition in question, when considered, not in the light of what actually took place, but in the light of what was likely to take place? It was not at the junction of two narrow streets, as in the Speir case, but in a wide street bordering on a park seven acres in extent, with reasonable space for safe and effective management. The display was under the control of experts of established skill and experience. The fireworks were all made by a leading manufacturer of high repute. For more than thirty years he had given similar displays, with similar pieces, all over the world, without an accident of moment. Repeatedly, in Madison square, in Union square and in City Hall Park, during the Spanish war, on election nights, at the opening of great public works and on other occasions, he had given such exhibitions with no bad results. He had never known a mortar to explode before and it was the explosion of a mortar used for the purpose of firing bombs that caused the accident. All the mortars had been carefully tested on the day of the exhibition and each responded to the tap of the hammer with that clear ring which indicates a sound condition. The explosion was owing to some cause so secret and unprecedented that it could not be explained. Army officers of great experience in testing explosives made many experiments with similar mortars soon after the accident, at the request of the district attorney, but they could not state the cause of the explosion and they regarded the mortars as safe. The expert called by the plaintiff, an ex-army officer who had made many tests in *490 behalf of the government, likened the occurrence to the firing of a gun hundreds of times without danger, when at last "you suddenly have a burst that cannot be explained." He looked for the unexpected and favored precautions to meet what possibly might happen. He thought that "as an extra precaution" space should have been "roped off for one hundred feet" and that the mortars should have been sunk below the surface of the ground so that a possible explosion would do no damage. The other experts were of a different opinion, and some thought that burying in the ground would increase the danger.
The occasion was one of public rejoicing by many people. For generations such exhibitions have been common throughout the country. Our great national holiday never passes without them in many places all over the land. National victories, the victories of political parties and the success of organizations comprising a multitude of persons, for time out of mind have been celebrated by such displays. It is a common method by which large bodies of people express their satisfaction and joy over some event they deem important. Fireworks are widely used to express patriotism, triumph and gladness, to celebrate public events, to entertain crowds of people and for various purposes, too numerous to mention. Such uses are no innovation but are in accordance with an old and well-settled custom of the country, sanctioned by the practice of every community. The custom may not be wise, but it is almost universal and indicates the average judgment of our citizens upon the subject.
An exhibition of fireworks is not malum in se, but is evil or innocent according to circumstances. Unless malum in se, like a disorderly house, for instance, a nuisance is a matter of degree. Thus we have held that the storage of gun-powder is not a nuisance per se and that it "depends upon the locality, the quantity and the surrounding circumstances," which are for the consideration of the jury. (Heeg v. Licht,
The judgment appealed from should be affirmed, with costs.
CULLEN, Ch. J., GRAY, WERNER, HISCOCK and CHASE, JJ., concur; EDWARD T. BARTLETT, J., absent.
Judgment affirmed. *492