121 N.Y.S. 517 | N.Y. App. Div. | 1910
The plaintiff seeks to recover damages for personal injuries on the theory of a nuisance. She -ivas passing in a street adjacent to land owned by the defendant whereon persons were playing ball, when a ball batted by one of the players struck her. It is not contended that the defendant maintained or promoted the ball playing or had any concern therewith, but that the defendant is liable because it permitted and did not prevent it. The learned court dismissed the plaintiff at the close of her case despite her request that the questions be submitted to the jury whether this ball playing was dangerous and, therefore, a nuisance, and whether the frequency of the ball playing in proximity to the defendant’s station and in the presence of its servants was proof of knowledge and notice thereof to the defendant, and whether the defendant took part in the maintenance of a nuisance with consequent liability for this injury. Ball playing is not a nuisance per se. (Alexander v. Tebeau, 24 Ky. Law Rep. 1305.) Was there evidence that this ball playing was attended with such a degree of danger as made it likely that it would work hurt upon a traveler in that street at the time of such playing, so that there was a question for the jury as to. whether it constituted a nuisance as to the plaintiff ? (Melker v. City of New York, 190 N. Y. 481.)
The tract of land is in the town of Harrison, which has a population of 2,900. The extent of its territory and the comparative density of its population are not before us. That, tract is an open space between 200 and 300 feet square. It lies adjacent to the railroad station of the defendant. Another side is bounded by a street - named Halsted avenue, and yet another side by a street named Harrison avenue,-which crosses the defendant’s tracks by a bridge. On one of the streets is a turnout for trolley cars. The post office is on Harrison avenue,.a little .more than half a block away. The town clerk’s office is on a corner" opposite this tract
The judgment is affirmed, with costs.
Present — Hirsoh'berg, P. L, Jenks, Burr, Thomas and Carr, JJ. ;
Judgment unanimously affirmed, with costs.