
    Jacob J. Durfield, as Administrator, etc., of Charles W. Durfield, Deceased, Respondent, v. The City of New York, Charles Bimberg and Others, Copartners as National Equipment Company, Appellants.
    
      Negligence — death from the breaking of a pole, erected in a city street to carry a political banner — where the defect in the pole could be discovered by proper tests or where the pole was improperly guyed, the parties erecting the pole are liable — ’ the question as to the city’s liability is one of fact—evidence that the pole was improperly guyed is inadmissible unless pleaded— a verdict of §10,000 reduced to §5,000.
    In an action brought against the city of New York and. the members of a copartnership doing business under the name of the National Equipment Company to recover damages resulting, from the death of the plaintiff’s intestate, it appeared that the individual defendants suspended a political banner across a street in the city of New York from poles which they had erected on each side of the street under a permit from the department of highways of the city granted pursuant to a city "ordinance; that at a time when the wind was blow ing at a velocity of about sixty miles an hour, which velocity was not unusual, ’ one of the poles broke at a distance of eight feet from "the top and fell to the ground, inflicting injuries upon the intestate which resulted in his death.
    The plaintiff gave evidence tending to show .that the pole was defective 'at the , point Where it broke and that, although the defects were not discoverable upon a casual inspection, they were discoverable by well-known tests of tapping or sounding the pole; that "the city neither inspected the poles nor supervised their erection. The plaintiff also gave evidence tending to show that the pole was not properly, guyed, and that if it had been properly guyed it would . not have fallen to the ground, even though it did break.
    The complaint charged the individual defendants with negligence both in falling to discover the defects in the pole and in failing to properly secure it by guy ropes or wires. The only negligence charged against the city, however, was that it permitted the erection- of a pole of insufficient strength.
    Upon an appeal from a judgment rendered against the city and the individual defendants upon the verdict of a jury it was
    
      Meld, that the individual defendants were called upon to exercise the caré and caution that reasonably prudent men would exercise in securing the erection of a pole of sufficient strength, in view of the strain of the banner upon it,, to withstand such storms of wind, hail, rain or sleet as from past experience might • be expected in the locality in the season during which they permitted the banner to remain over the street;
    That if they did not possess the necessary knowledge concerning the strength of . the material and the effect upon it of winds and storms, they were called upon to employ or act upon the advice of others who did;
    That the jury were justified in finding that, if the pole had been selected and tested with proper care and had been properly secured in place the accident would not have happened, and that, consequently, the judgment should be . affirmed as to the individual defendants;
    That a verdict against the individual defendants for §10,000 was excessive and should be reduced to §5,000;
    That the judgment should, however, be reversed as to the city because of the action of the court in receiving, over its objection, evidence against it to the ; effect that the pole was improperly guyed; •
    That it could not'be said as matter of law that the city was not-chargeable with negligence in permitting the individual defendants to erect in a public street a pole which, although apparently safe so far as a casual inspection would dis- - . close, was in fact unsafe owing to defects which could have been discovered by the application of ordinary and well-known tests;
    That the question whether it had been negligent in this respect was one of fact for the jury.
    Separate appeals by the defendants, The "City of New York and by Charles Bimberg and others, copartners as National Equipment ■Company, from-a judgment of the Supreme' Court in favor of the plaintiff, entered in the office of .the clerk of the county of Hew York on the'21st day of January, 1904, upon the verdict-of a jury for $10,000, and also from an order entered in said clerk’s office on the 21st day of January, 1904, denying the defendants’ motion for a new trial made upon the minutes.
    This is a statutory action to recover for the death of Charles W. Durfield. On the 12th.day of September, 1900, the decedent was walking down Broadway, arid at about nine-thirty o’clock was struck by the top of a banner pole erected, on the north side of Duane ¡street, a little west of Broadway, which inflicted injuries resulting-in his death. The pole was erected by the individual appellants in the latter part of August, 1900, pursuant to a permit from the city through its department of highways, granted on the 8th day of August, 1900, as the westerly. support for a political banner which they ¡swung across Broadway, supported on the east by a similar pole. 'The westerly pole was of cedar arid about sixty feet in length, one ■foot in diameter at the base, and from two and three-quarters to four inches in -diafneter at the top. . They also obtained permission “to open the pavement. The base of the pole was sunk five feet below the surface of the street near the curb. After erecting the poles, they suspended an open network banner twenty by forty feet in -dimensions from a galvanized wire connecting the poles near the top. On the morning of the accident there was- a-strong wind which -attained a maximum velocity of about sixty miles an hour at about the time of the accident. The pole broke eight feet from the top -and fell to the walk. • " •
    Evidence was given on the-part of the plaintiff tending to show that at the point of the break there was a "small knot, which, how-ever, did not materially affect the strength of the pole, and a “ gum-¡streak ” and “ heart-shake,” which materially weakened it but were not observable by casual inspection. They were discoverable, however, by well-known tests of tapping or sounding the pole. Evidence was also given tending to show that the pole, was carefully selected -"and properly tested by the licensees before it was erected, and no -defect discovered. •
    - The complaint was framed and the action was tried on the theory -of negligence. The court submittéd the question of the negligence of the licensees and’ of the city to the jury. The ' complaint fairly charged the licenseés with negligence both in failing to' discover the defects in the pole and in failing to properly secure'' it by guy ropes or wires. The negligence charged against' the city, however, was limited to’ permitting the erection "of a' pole of insufficient strength for the purpose for which it was to be used. Upon the trial evidence was given tending to show that this' pole was not properly guyed, and that if it had been, even though it broke, it would not have fallen to the ground. The narration of the evidence in the record shows that during the direct examination of a witness called by the plaintiff, he testified : “ There were - no guys or stays to that pole except what I have stated ; it was not guyed or stayed to any building.” The questions and answers are not given, so that we are unable to tell whether this evidence was in answer to a specific question calling for it, or a general question not indicating it, or was volunteered by the witness. The record, however,; shows that the counsel for the city thereupon objected to the evidence upon the ground that the complaint contained no allegation of negligence against the city by reason of the manner in which" the pole was guyed. The court overruled the Objection, and' counsel for the'city excepted. . The witness was then permitted to proceed, and stated that there was nothing to check the pole from falling to the ground when the snap came, and that if the pole had been guyed as the easterly pole was, by divergent guy ropes, the guy ropes would have' prevented the pole from falling to any great extent.
    
      Theodore Connoly, for the. appellant The City'of New York.
    
      Leon Lewin, for the appellants Bimberg and others.
    
      George Ryall, for the respondent.
   Laughlin, J.:

Subdivision 14 Of section 49 of the Greater New York charter (Laws of 1897, chap. 378) authorized the municipal assembly to enact ordinances in relation to exhibiting banners, placards or flags, in or across the streets, or from houses or'other buildings.” Pursuant', to this authority the municipal assembly in the year 1900 passed an ordinance known as approved NO. 515, granting pérmission to all póliti-" .cal parties “ to erect, place and keep transparencies, erect poles and string banners therefrom, the commissioner of highways consenting thereto, and where banners are swung from houses, the property owners consenting thereto. The work to be done and materials supplied at their own expense.” The permit for the erection of the pole at this place was issued by the superintendent of the bureau of street openings, paving and repaving, pursuant to this ordinance, and it provided that the work was to be done “to the entire satisfaction of this department,” and it was approved by. the commissioner of highways.'

In view of this provision of the charter and of this ordinance and of the permit, it was doubtless lawful for the licensees to erect a pole at this point for the support df the banner, but in doing so they were required to exercise care commensurate with the dangers apparent and to be foreseen. The evidence shows, and doubtless we might take judicial notice of the fact-, that while we dóhot daily experience a gale of wind of sixty miles an hour, the wind occasionally and not infrequently in this latitude does attain that or a greater velocity. The licensees were called upon to exercise the care and caution that reasonably prudent men would exercise in securing the erection of a pole of sufficient strength, in view of the • strain of the banner upon it, to withstand such storms of wind, hail, rain or sleet as from past experience might be expected in. this locality in the season during which they permitted the banner to remain over the street. Their motives were doubtless patriotic, but that is no excuse for neglect which endangered public safety. They were called upon to know that, unless they were competent to understand the strength of the material and the effect upon it of winds and storms, they were endangering public travel. If they did not possess the necessary knowledge of these things, they were called upon to'employ or act upon the advice of others who did. If this pole had been selected. and tested with' proper care,' and if it had been properly secured in' place, we agree with the jury that the acci- • dent would not have happened. The liability of the licensees, therefore, was fairly established. We are of opinion, however, that the verdict, $10,000, is' excessive, and that it should be reduced to $5,000. ’

We are of opinion, further, that the city must be awarded a new trial for the error in receiving evidence against it that the pole was not properly guyed. The complaint did not- charge the city with negligence in that respect.. The evidence was material. The jury might have found that the pole would not have broken, notwithstanding its defects-, if it'had been properly guyed, and also that it. wmuld not have fallen to the ground if it did break; •

The learned’ counsel for the city strenuously contends that the complaint should have been dismissed or a verdict directed in favor of the city, because it appears that the defects in the pole were not discoverable by casual inspection with the naked eye. . This question will likely arise upon a new trial, and, therefore, should receive an expression of our views for the guidance of the trial court. The evidence shows that-the city, after granting the permit, paid no ¡attention to the erection of these poles. It neither inspected the poles nor supervised their erection. Its failure to perform its duty would not render it liable if it clearly appeared that the defects would not have been discovered by the flill performance of its duty. We think this was a question for the jury. It cannot be maintained ¡as matter of law that the city is not. chargeable with- negligence .in. permitting a licensee to erect an obstruction in and over a public ¡street which, although -apparently safe on the exterior, is in fact unsafe, owing to defects that. would have been discovered by the ¡application -of ordinary and well-known tests. The. city had full ■control over this matter. ■ It could grant or refuse. the license at will. In granting the license, it could have imposed conditions and restrictions tending to insure the protection-of the public against the ■negligence of the licensee. It could have required, as a condition ■of grahting the ¡permit, that a competent- inspector be employed by the city, at the expense of the licensee, or it could have required a bond of indemnity which would have protected the city and incidentally have aroused, the licensees to.- greater care and caution. We do not mean to be understood as holding that it was'the duty of the city as matter of law in the circumstances ;of. this case to test the pole. We merely decide that that was- a .matter for the- jury in the circumstances. If the licensees" were: competent-and employed ’ •competent men to select- and. test the poles, a . jury might very well determine that, if the city through its representatives observed that this was done, it' was - not called upon to' make. a. further ¡test.- It ■cannot, however, be held as matter of law that, if the city had exercised proper care in supervising the erection of the pole, it would not have discovered either that the pole was not properly inspected and tested or was unsuitable, owing to its defects, or was improperly erected in that it was not properly guyed. In the present state of the pleadings, however, liability for the failure to properly guy the pole cannot be predicated as against the city.

It follows, therefore, that the judgment and order should be reversed as to the individual appellants and a new trial granted as to them, with- costs to said appellants to abide the event, unless the respondent stipulates to reduce the judgment as entered, including interest and costs, to. the sum of $5,206.42; in which event, the judgment as so modified and order appealed from are affirmed, with-put costs; and as tó the city, the judgment and order are reversed and a new trial granted, with cost’s to the appellant to abide the event. -

• Van Brunt, P. J.,.O’Brien and Hatch, JJ., concurred.

Ingraham, J.

(concurring):

I Concur with Hr. Justice Laughlin in the modification and affirmance of the judgment against the individual defendants and in the reversal of the judgment against the city. I think, however, that the evidence is not sufficient to justify a finding that the city was negligent.

• As to individual appellants, judgment reversed and new trial ordered, costs to appellants to abide event, unless respondent stipulates to reduce judgment as entered, including interest and costs, to $5,206.42 ; in which event, judgment as 'so, modified and order affirmed, without costs. As to the city, judgment and order reversed, new trial ordered, costs to appellant to abide event.  