
    Louise Johnson, Respondent, v. The City of New York and Others, Appellants.
    Second Department,
    December, 1905.
    Highway —.when speed contest by automobiles, though authorized by board of aldermen, is unlawful — liability of municipality and promoters of such contest for injuries received by spectator.
    The defendant Automobile Club of America was authorized by resolution of the board of aldermen of the defendant city of New York to hold speed trials of automobiles on a certain speedway and in such trials to exceed the legal speed limits set by law. Extraordinary and thorough precautions were .taken, by the' defendants to prevent accidents. The plaintiff; a voluntary spectator, at the speed trials, stationed in an adjoining wood, was injured by an auto-' mobile running at "a high rate of speed, which, owing to loss of control by the driver, left the .course and struck the.plaintiff.
    2Hd, that the liability of the defendants Was joint;
    That,, as the said resolution of the board of aldermen was 'not in form an. ordi- : nance authorizing the speed trial, but merely a permission or privilege which said beard was not authorized to give, and as the Laws of 1904, chapter 538, section .3, subdivision 6; .providing that local authorities may temporarily set aside highways for speed contests, was.-n,ot then in force,.and as such use of a, public highway in violation of the speed laws is a nuisance, as-a matter of law, the defendants were liable to the plaintiff for said injuries'as a matter of law;
    That the resolution of the said boardof aldermen, though Without legal authority,, was within the jurisdiction of said board and was not -ultra vires. so as to exempt the city from liability.
    
      It seems, however, that had said board .of aldermen acted by the passage of a-general ordinance instead of by mere resolution, the. acts might have beén legalized in part. . 1
    
      Reld, further, that the plaintiff, having shown a violation of the law, had established a prima Jaeie case, and, that, -in the absence of exculpatory - proof by the defendants tending to show that the.accident would have been as likely to occur had the statutory speed limit been maintained,'' there was no . question for the jury.
    
      It seems, that had the automobile been running at a legal fate of speed the burden would have been upon the plaintiff to show the negligence of the defendants. Hot so, however, when the injury results from a criminal violation of the law. Held, further, that the fact that the presence of the plaintiff was voluntary did not bar a recovery because she did not know of the Unlawful nature of such speed contest. - * ' ■
    Appeal "by flie defendants, The City of New York and others, from a judgment of the Supréme, Gonrt in- favor of the plaintiff," entered in the office of the clerk of the county of Richmond on the 23d day" of October,' 1903, upon the verdict of á"jury,.and also separate appeals from orders entered in said clerk’s office on. the 5th and 10th days of Ho'vember, 1903, respectively, denying "the defendants’ respective motions for a hew trial made upon the minutes.
    
      James D. Bell [ James W. Covert and John J. Delany with him on the brief], for the appellant The City of New York.
    
      Charles F. Brown for the appellant The Automobile Club of America.
    
      
      William W. Niles, for the individual appellants,
    
      Stillman F. Kneeland [Edward B. La Fetra with him on the brief], for the respondent.
   Hirschberg, P. J.:

The plaintiff has recovered a judgment for personal injuries sustained by her while she was witnessing, from abutting property, a test of the speed of automobiles upon a highway in the bo.rough of Richmond. The appellants against whom the judgment has been obtained are the City of New York, the Automobile Club of America and the individual members of the racing committee of that club, under whose personal supervision the test of speed was made.

The trials of speed were had on the 31st day of May, 1902, on a public highway known as the Southside boulevard in the borough of Richmond, the course being a certain measured mile of the highway which had been then known as a speedway ” and used for fast driving and horse racing for a number of years. This portion of the boulevard had been set apart and improved for speedway purposes in 1900. under the direction of the chief engineer of highways of the borough, pursuant to a resolution of the local board, confirmed by resolution of the board of public improvements. It is located about three-quarters of a mile from the ocean, in an unsettled region, having but two houses — hotels — on the course. A crowd of several thousand people assembled on the occasion in question to witness the contests. The trials of speed were held on the assumed - authority of a resolution adopted by the board of aldermen of the city, on April 22,1902, as follows:

“ Ltesdlmed, That upon the recommendation of the local Board, First District, Borough of Richmond, permission be and the same is hereby given to the Automobile Club of America, to conduct speed trials for automobiles on the Southside Boulevard, in the Fourth Ward of the Borough of Richmond, on Saturday, May 31, 1902, between the hours of eleven o’clock a. m. and four o’clock p. m., or in case the day be stormy, on the first clear week-day thereafter, between the same hours; and that during said hours on said day a speed of greater than eight miles per hour may be attained, to which end any and all ordinances regulating the speed of vehicles is. hereby suspended, .such suspensions to -continue, however, only for the day and place on which the privilege herein mentioned and conveyed is exercised; -and, provided further, that the said Automobile Club of America furnish all proper police protection over that part of the Southside Boulevard ? over which the ¡said speed trials are to he conducted.” ■ "

The precautions taken by those in -charge -of tine ¡speed ¡contests to insure safety were comprehensive ..and" extraordinary. The -surface of the .roadway was smoothed and'rolled,.. A bridge was- lowered so as to avoid a bump. The -tracks -off a trolley line which crossed the course were covered up, and traffic by cars 'suspended at that point during the contests. ‘ The streets and -avenues crossing or intersecting the boulevard were barricaded by board fences. Posts were placed on ¡one side, -of the boulevard .and ropes strung from them along the entire -course, A telephone .lime was- «erected and electric gongs put up which rang (continually whenever ¡an automobile was ramming on the course. Flagmen were .stationed along the course, each carrying a red flag, to wars people -of the .approach'of an ¡automobile; More than .100 policemen belonging to the city force Were on duty guarding the course ¡and keeping .people off .if during the running of the machines. Am ambulance and a hospital .or emergency tent were provided, supplied with ice, .medicines and surgical appliances -and .attended by physicians and. trained ¡nurses. And, as an extra and .final precaution, but one -automobile was allowed on the course a* a time,, each" finishing its -exhibition of speed before another machimo was permitted- a trial.

The plaintiff was voluntarily present, at the speed trials as ;a- spectator. She came there as she said “to see the races.” -She resided about five miles from the course, and iu company with her‘husband and another lady and'gentleman drove from her home to the village of Bichm-ond, and went thence by trolley to the boulevard. Alighting from the car on the ¡side of, the boulevard where the ropes were strung, and ascertaining that ¡a better view of the contest could be obtained from the other tide,, the party lifted the ropes, passed under them, -crossed the boulevard, and stationed themselves in the woods -adjoining the highway. The plaintiff remained in the woods until the casualty occurred which constitutes her grievánee. . Many automobiles went down the course ¡at a high rate, of speed without mischance. The last, and apparently the fastest, went at the rate of about a mile a minute, a machine known as the “ Baker,” operated by Walter 0. Baker and Edward Denzer; and just as this machine got opposite the plaintiff, it left the road, ran up into the woods, and by physical contact and collision inflicted the plaintiff with the personal injuries-of which she complains.

The learned trial justice submitted the case to the jury upon the theory that their province was confined to an assessment of the damages. Without entering into details it may be said, that the connection of the appellants with the occurrence ivas such that liability, if it exist, attaches to all. The serious question is, whether they were liable as for a nuisance per se. I think they were. The act which they committed was unlawful and inherently dangerous to the community, and constituted a nuisance in law. A public nuisance may be defined as including anything which by its use or by its. permitted existence necessarily threatens or works annoyance, harm, inconvenience or danger to a community generally, and which by reason of its unlawful character may he remedied by public prosecution! Irrespective of its public or private nature a nuisance is well defined in the American and English Encyclopaedia of Law (Yol. 21 [2d ed.j, p. 682) as “literally an annoyance, and signifies in law such a use of property or such a course of conduct as, irrespective óf actual trespass against others or of malicious or actual criminal intent, transgresses the just restrictions upon use or conduct Avhicli the, proximity of other persons or property in civilized communities imposes upon Avhat would otherwise be rightful freedom.” And by section 385 of the Penal Code a public nuisance is defined as “ a crime against the order and economy of the State, and consists in unlawfully doing an act, * * * Avhicli * * * 1. Annoys, injures or endangers the comfort, repose, health or safety of any considerable number of persons; or * * * 4. In any way renders a considerable number of persons insecure in life, or the use of property.’,’ In the light of these definitions it seems obvious, that the use of a public highway in Adulation of Isav and in a manner intrinsically dangerous to the community must be. a nuisance as matter of Iuav.

By section 666 of the Penal Code, as in force at the time in question, it was made a misdemeanor for any person to operate an automobile upon any public, highway within • any city or incoi> porated village at a greater, rate of speed - than eight miles an hour, pxcept where, a greater rate of speed was permitted by the. ordinance of a city. (See Laws of 1902, chap. 266.) By section 50 of the Greater New York charter (Laws of 1901, chap. 466), in force at the time, it was provided that, subject to the Constitxn iion and laws of the State,, the board of aldermen shall have power to r'egulate the use of streets and side walks by foot passengers, animals or vehicles, and to regulate the speed"at which horses shall be driven ' or ridden and at which vehicles shah be propelled in the streets. But the same section- provides as follows: “ The board of aldermen shall not pass any special ordinance in relation to any of the matters mentioned in this section. All ordinances in relation thereto shall be general ordinances which may either.apply throughout the whole-city or. throughout specified portions thereof,” etc. By section 39 of the charter it is provided that every legislative act of the board of aider-men shall be by ordinance or resolution; and by section 38 it is provided that the style of ordinances shall be: “ Be it' ordained by the board of aldermen of The City of. New York,: as follows.: ”

The resolution under which the appellants acted was not an ordinance, and certainly was not a general ordinance. It ‘was not couched in the style decreed by the charter. ' It had no general scope or operation at .all. In precise and exclusive language it was and purported to be only a “ permission ” or “.privilege ” conferred upon the Automobile Club and upon no one else to conduct speed trials in the limited locality during the prescribed ‘ period of - time. It repealed no ordinances regulating the speed of vehicles, and it could manifestly have no fpree or effect as against -the injunction- of, the positive law of the State. Indeed the, claim' of the appellant the City of New Y-oi'k on the trial and oh-this appeal is that it was wholly without sanction of law and ulbra vires. Nor is there any claim that the use of the boulevard as a-speedway was under any law or ordinance, while the evident assumption on the part of the appellants that local legislation was necessary to authorize the speed contests is an indication pointing to the contrary/ It is true that by - subdivision 6 of section 3 of chapter 538 of the Laws of 1904 it is. provided that local authorities may, notwithstanding the other provisions of this section, set aside for a given time a specified public highway for Speed tests or races, to be conducted under proper restrictions for the safety of the public,” but that law not being in force at -the time of the plaintiff’s accident lias no application, and no significance, except possibly as a legislative declaration that its subject-matter was not a part of the general law of the State prior to its enactment.

In Landau v. City of New York (180 N. Y. 48) a similar resolution, passed by the board of aldermen of the city of New York, was held to be in substance and effect only a license or permit. In that case the resolution purported to suspend for a limited period the city ordinances forbidding the discharge of fireworks, and under its authority explosives were discharged úpon a public street in the presence of an immense throng in the very center of the city life, to the injury of the plaintiff. It was held that although the resolution did not, as in this case¿ expressly confer upon any one alone the privilege of violating the law, but conferred it generally upon political parties and associations during a pending campaign, it was tantamount to a municipal invitation to dó what was done and should be regarded in law as the granting of an unlawful permit for that purpose: The court refrained from a determination of the vexed question whether the act done under the unauthorized permit was a nuisance as matter of law, saying (p. 55) that “ fireworks in certain streets may or may not be a nuisance, according to the circumstances, which usually present a question of fact. * * * Fireworks exhibited on an extensive scale in a great thoroughfare, in the midst of a large city where a vast multitude of people is assembled, if not a nuisance as matter of law, may properly be found such as matter of fact.” There is an essential difference, however, between the permit granted in that case and the one granted herein. The permit there did not, so far as appears, transgress any general State law or assume to authorize the commission of a criminal offense. The entire control of the question of discharging fireworks within'the municipal jurisdiction was vested by charter in the local authority, and there was no element of criminality involved in the action of the licensees beyond the violation of city ordinances which the city itself had assumed to suspend for their personal benefit and to render temporarily inoperative as to the special class of privileged offenders.

I do not overlook the fact that.what was done in this, case might have been legalized,, in part at least, by the passage of a proper general ordinance. It may well be conceded that no more suitable place could have been found in the, city for the exhibition of unlimited speed than, the remote and isolated spot which was chosen,., and that’ no greater care or caution could be reasonably expected than were exercised by the, appellants. That care and caution may be fairly regarded as the exercise of the utmost vigilance of which the human mind'is-capable, but it was displayed in the performance of a criminal act.. The evidence is harmonious and undisputed, leaving no controverted question of fact for the solution of practical men. All the appellants contributed to the act by personal control and supervision, by the expenditure of both private and city money in its accomplishment, and even by the aid of city officials in various departments in knowing executive administration. What was done under the resolution of the board of aldermen 'must be regarded in the light of the undisputed proof as being the very thing which was designed and contemplated by the parties. A portion of a. public street in- defiance of public penal law was practically boxed up for the time being, for the use of a single private club, to the exclusion of the general public, and racing machines of minimum weight and maximum power were propelled at unlimited speed under' conditions which indicated that those in charge fully appreciated the fact that danger to human life was' imminent, and which the sequel demonstrated were "in the extreme of caution still incompatible with the safety not.only of those who might chance to be in the invaded highway, but even of persons entrenched within the vantage of neighboriilg private property.

The city is liable for the consequences of the unauthorized act of the board of aldermen.' The subject-matter of the resolution was within the jurisdiction of tlie board and it had ample 'power to-regulate and control the use of the highway within lawful limitations. As was said in Speir v. City of Brooklyn (139 N. Y. 6, 12): “ The ordinances, passed were not uli/ra vires, in the sense that' it, was not within the. power or authority of the corporation to act in reference to the subject under any circumstances. ' (See Dillon on Mun. Corp. § 963 et seq.) It is the settled doctrine of the courts that a municipality is not bound merely by the assent of its executive officers to wrongful acts of third persons, nor could the mayor bind the city by a permit, for the granting of which he had no color of authority from the common council, and which was not within the general scope of his authority. (Thayer v. City of Boston, 19 Pick. 511.) If the permit was in fact authorized by the ordinance the city would, as we conceive, be liable, although the particular act authorized was wrongful. For a mistake in the exercise of its powers, or by acting in excess of its powers upon a subject within its jurisdiction, whereby third persons sustain an injury, there seems to be no reason in justice which should deny the injured party reparation. The common council is the governing body. It represents the corporation, and its acts are. the acts of the corporation when they relate to subjects over which the corporation has jurisdiction. It is true that the power to pass ordinances and to regulate the use of fireworks did not embrace a power to authorize or legalize nuisances. But if the ordinance transcended the power of the common council in this respect, the misconstruction of the common council of the extent of its powers in dealing with the'subject, which was concededly within its power of regulation, does not, we think, within any just view of municipal exemption from the consequences of unauthorized and wrongful acts of the governing body, exempt the city from liability.” (See, to the same general effect, Cohen v. Mayor, etc., of New York, 113 N. Y. 532.)

It is urged by the learned counsel for the appellant, the Automobile Club of America, that the plaintiff’s injuries were not the proximate result of the excessive speeding ; that there was no necessary causal connection between the conduct of the contests and the erratic movements of the Baker machine, and that if there was it presented a question of fact for the jury and not one of law for the court. The same claim might be made with equal force had the plaintiff been run down in the highway. It is obvious that an automobile traveling at only eight miles an hour could run over a pedestrian, but that fact would be no defense to a wrongdoer speeding at the rate of sixty miles an hour, on a theory that no causal connection existed between the speed and the injury. There was no direct evidence of the reason why the Baker machine left the course and went into the woods, and the parties have assumed upon the argument that those who were driving it in some manner lost control 'of it. The two men who Were operating the machine .were taken from it unhurt and neither was called to testify. In fact, the appellants made no attempt to ascribe the accident to an inn.o-,cent or lawful agency, or to prove that it occurred from the negligence of these men or either ,of them. The restrictions of law ' against high speed are' in the interests of safety and indicate that in law an excessive speed is regarded as conducive of danger. I think that the plaintiff established a prima facie case on this branch when- she proved the violation of the law and the coincident disaster, and that in the • absence of all exculpatory proof tending to show that the' accident would have been as likely to occur had the statutory rate of eight miles per diour been maintained, there was no disputed fact for submission to .the jury. Whether the machine that did the mischief was in incompetent hands or defective in construction, of which there is no proof, :and such incompetency or defect constituted a proximate cause of the accident, the illegal rate of speed was clearly an efficient proximate cause in the absence of all proof to the contrary which rendered those liable who were responsible for it. (Bing v. City of Cohoes, 77 N. Y. 83; Ivory v. Town of Deerpark, 116 id.,476, 485.)

■ It seems clear to me that any other view, would necessarily ■ impose upon the plaintiff tlie burden of proving-affirmatively as a part of her cause .of action that the men in chai 'ge of the machine would hot have lost control of it if it had been running at the rate of only eight miles an "hour instead of sixty. This is something which neither she nor the jury could know, and.it,would be unreasonable to impose upon a plaintiff the establishment of a fact which rests wholly upon hypothetical conjecture. Had the accident resulted from the. uncontrolled or Uncontrollable movements of a machine traveling at the lawful rate the plaintiff would have been requirbd, of course, to prove negligence affirmatively; but, happening as it did in the commission of a criminal offense, the burden, was- on 'the perpetrators to prove, if it be possibly provable, that it would háve happened just the' same had they obeyed the law instead of violating it. ' What the plaintiff need not prove, in order to make out S ease, need not be submitted to a jury for determination.

The fact, that the plaintiff was a voluntary spectator of the contests does not deprive her of the right to recover. A different question might have been presented had she stationed herself .in the highway where the hazard was obyious, but where she was she had no reason to apprehend danger. Similar immunity may not be accorded to the defendants who were the active wrongdoers, and as such subject to the rule referred tó in Landau v. City of New York (supra, 55) in relation to accidents from unauthorized public displays, that- “whoever is responsible for them must run the risk of liability for the consequences, so far as they result in injury to person or property.”

It is possible that a different view might be taken had it appeared that the plaintiff knew or had any reason tó know the unlawful nature of the contests. There is, however, nothing in the case tending to indicate that, she was aware that they were not being conducted under the operation and sanction of a general ordinance or by virtue of a legal and valid permit. She did not participate in the contests in any way, and her mere presence in the woods cannot be regarded in a legal sense as contributing to the accident, assuming for the moment that freedom from contributory negligence is an essential factor in her ease,

The judgment and order should be affirmed.

Present — Hirschberg, P. J., Bartlett, Jenks, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs. 
      
      See 4th ed.— [Bef.
     