
    Harold Hayes, Respondent, v. Paul Malkan, Defendant, and Consolidated Edison Company of New York, Inc., Appellant.
    Argued January 7, 1970;
    decided April 22, 1970.
    
      
      John M. Keegan and William F. McCauley for appellant.
    I. Under the facts in this case, the location of the pole, as a matter of law, did not constitute negligence on the part of Edison. The proximate producing cause of the accident was the condition of the automobile and the manner in which it was being driven at the time of the accident. (Darling v. State of New York, 16 N Y 2d 907; Kinne v. State of New York, 8 A D 2d 903, 8 N Y 2d 1068; Ellis v. State of New York, 16 A D 2d 727, 12 N Y 2d 770; Van Wie v. City of Mount Vernon, 26 App. Div. 330; Bailey v. Bell Tel. Co. of Buffalo, 147 App. Div. 224.) II. The location of the pole was not the proximate cause of the accident. (Shaw v. State of New York, 196 Misc. 792, 278 App. Div. 871, 303 N. Y. 644; Miller v. State of New York, 201 Misc. 859; McNaughton v. State of New York, 9 A D 2d 990; Eckerlin v. State of New York, 17 Misc 2d 224, 9 A D 2d 717; Trabisco v. City of New York, 280 N. Y. 776; Berg v. Town of Huntington, 32 A D 2d 549.) III. There is. no evidence to support plaintiff’s theory that the door was closed when it struck the pole. The physical evidence establishes conclusively that the door was open at the time of impact. In any event, plaintiff’s proof left the cause of the accident to mere conjecture and speculation. (Szpyrka v. International Ry. Co., 213 App. Div. 390; Ruppert v. Brooklyn Hgts. R. R. Co., 154 N. Y. 90; Matter of Case, 214 N. Y. 199; Scharff v. Jackson, 216 N. Y. 598; White v. Lehigh Val. R. R. Co., 220 N. Y. 131; Lane v. City of Buffalo, 232 App. Div. 334; Solomon v. Brooklyn Cornell Utilities, 265 App. Div. 886, 291 N. Y. 593; Manley v. New York Tel. Co., 303 N. Y. 18; Ruback v. McCleary, Wallin & Crouse, 220 N. Y. 188; Digelormo v. Weil, 260 N. Y. 192.)
    
      William A. Wingate and Benjamin H. Siff for respondent.
    I. Whether Consolidated Edison was negligent in maintaining its pole, 7% inches from the edge of the highway and whether such negligent maintenance was a proximate cause of the collision were questions of fact, properly decided by the jury. (Meil v. Syracuse Constructors, 19 A D 2d 10; McGettigan v. New York Cent. R. R. Co., 268 N. Y. 66; Stern v. International Ry. Co., 220 N. Y. 284; Clawson v. Central Hudson Gas & Elec. Corp., 298 N. Y. 291; Lambert v. Westchester Elec. R. R. Co., 191 N. Y. 248; Larsen v. City of New York, 269 App. Div. 753; Butler v. Village of Oxford, 186 N. Y. 444; McKeever v. New York Tel. Co., 254 App. Div. 872, 279 N. Y. 651; Moroney v. City of New York, 117 App. Div. 843, 190 N. Y. 560; Trabisco v. City of New York, 280 N. Y. 776.) II. Whether the side of Malkan’s ear struck the pole causing the door to open and plaintiff to fall out was a question of fact. (Maresca v. Lake Motors, 32 A D 2d 533; Andersen v. Bee Line, 1 N Y 2d 169; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Kyriak v. 35-25 34th St., 263 App. Div. 340; Frate v. State of New York, 245 App. Div. 442; Garrow v. State of New York, 294 N. Y. 741; McCabe v. Richell Realty Corp., 248 App. Div. 743; Fordham v. Gouverneur Vil., 160 N. Y. 541; Dunham v. Village of Canisteo, 303 N. Y. 498; Wilkinson v. Dunckel, 9 A D 2d 244.)
   Jasen, J.

Plaintiff, one of three passengers in an automobile owned and operated by defendant Malkan, was injured when the vehicle struck a utility pole owned by defendant Consolidated Edison Company. The pole which Malkan’s car struck was approximately seven inches from the edge of the road and was located on private property behind a two-inch granite header. There is no explicit testimony as to how the car came in contact with the pole, since Malkan and the plaintiff stated that they did not know precisely what occurred. The only recollection plaintiff had of the accident was that he heard a thump ” and then found himself lying by the side of the road. The other passengers did not testify.

The trial court instructed the jury that ‘ ‘ the law imposes a duty upon the defendant [Consolidated Edison] that the pole must be so located as to avoid unreasonable and unnecessary danger to travelers upon the highway, regardless of whether it is on private or public property.” (Emphasis added.)

We hold this instruction to be erroneous, as a matter of law, and upon the facts of this case the complaint should be dismissed.

It is common practice in this State to locate utility poles along our highways between the edge of the traveled road and the end of the dedicated portion of the highway. When a collision with one of these poles occurs, it is frequently claimed that the proximate cause of the occurrence was the location and maintenance of the pole. In such cases, we have taken the view that placement of poles or other objects-—such as fire hydrants, guardrails, culverts, trees and shrubbery—in close proximity to the pavement and within the highway right of way, raises a question of fact for jury determination as to whether the placement of that object was such as to create an unreasonable danger for travelers on the highway. (Trabisco v. City of New York, 280 N. Y. 776; Koehler v. City of New York, 262 N. Y. 74; Stern v. International Ry. Co., 220 N. Y. 284.)

On its face, this rule might appear to have application to this case. However, unlike the cases cited above,, the pole herein was not within the public right of way, but rather was located on private property. Under such circumstances, we believe that there should be no liability against -the landowner, or Ms licensee, for an injury to a traveler arising out of a collision with the pole.

Were we to apply the Trabisco rule to the facts in this ease, we would be severely restricting the property owner’s use of his own land. Indeed, under such a holding, a driver, swerving off the road and striking an object entirely on private property, would be entitled to bring an action against the landowner and have a jury pass upon the question of whether the placement of the object, regardless of its distance from the road, was such as to create an unreasonable danger to travelers on the highway.

Carried to its logical conclusion, this rule would require a landowner to remove every tree, fence, post, mailbox or name sign located on his property in the vicinity of the highway, or permit them to remain, subject to possible liability. This, in our opinion, would impose an intolerable burden upon a property owner.

Moreover, such a rule would result in limiting the owner’s use of that portion of his property which abuts the road, and would be equivalent to a taking of private property for a public use without just compensation, in violation of our State Constitution (art. I, § 7, subd. [a]).

The rule applicable to excavations on private land adjacent to a public way (Beck v. Carter, 68 N. Y. 283, 291; Kelly v. Sabin Estates, 279 App. Div. 348, 349; Thompson v. New York Cent. & Hudson Riv. R. R. Co., 41 App. Div. 78, 81; Friedel v. Coffin, 214 N. Y. 698) is no more than an extension of the principle that one may not maintain a trap. The rule applies even to trespassers who it is known may come on the land, and, of course, a fortiori, to those who reasonably deviate from the public way. (See, Prosser, Law of Torts [3d ed., 1964], §§ 57, 58, pp. 360-361, 368-369.) There is neither practical need, nor social or economic justification, for unguarded holes. Thus, the owner ought, in any event, impose on himself minimum requirements to avoid hazard to users of the public way, whether pedestrian or motor traffic. But a utility pole is not a trap, nor is any other visible, sizeable, above-the-surface structure.

It is the continuing duty of the State or the municipality, not the abutting landowners, to maintain the highways and streets in a reasonably safe condition for ordinary use by the public. This responsibility does not shift to the abutting landowner merely because the State elects to build or widen the traveled portion of a highway, so as to bring the road in close proximity to objects upon an abutting owner’s property. If the public right of way is too narrow, because of objects on the abutting land, the burden should fall upon the State to acquire additional property for its right of way and pay just compensation for it. In the absence of regulating legislation, the adjoining landowner or his licensee should not be required to restrict the lawful use of his own property, or to use it at his peril.

Accordingly, the judgment appealed from should be reversed and the complaint dismissed.

Chief Judge Fuld (dissenting).

I cannot agree with the court’s conclusion that a public utility may, with impunity, erect and maintain a pole dangerously close to a public highway simply because it does so on land which" happens to be owned by a third party. The emphasis placed by the court on the property rights of a private landowner completely ignores the safety of the traveling public and allows the careful user of the highway to be placed in danger without any countervailing justification.

In the case before us, the plaintiff was seriously injured when the automobile in which he was a passenger struck a utility pole, owned and maintained by the defendant Consolidated Edison Company (Con Ed), which was located but a mere seven inches off the traveled portion of the road. Finding that the pole was so close to the highway as to create an unreasonable hazard to the traveling public, the jury returned a verdict in favor of the plaintiff. The court, however, is reversing the judgment and dismissing the complaint on the sole ground that the pole was on private property.

We have frequently held that a party who places a pole, or some other obstruction, dangerously close to a public highway may be held liable in negligence for injuries to users of the highway which may result therefrom. (See, e.g., Trabisco v. City of New York, 280 N. Y. 776; Toomey v. Western Union Tel. Co., 279 N. Y. 600; Koehler v. City of New York, 262 N. Y. 74, 77; Stern v. International Ry. Co., 220 N. Y. 284, 291; Lambert v. Westchester Elec. R. R. Co., 191 N. Y. 248, 251.) Almost precisely in point is the Trabisco case (280 N. Y. 776, supra), in which we held that the maintenance of a utility pole a foot and a half from the edge of the pavement gave rise to a jury question as to whether it constituted an unreasonable hazard to passersby. I do not believe that Trabisco or the other decisions cited above may be distinguished on the ground — suggested by the majority (opn., p. 298)—that the obstruction in each of those cases was “ within the highway right of way”. This may well have been the situation in those cases but it is significant that in no one of them did the court treat as relevant, or even make mention of, the ownership of the land on which the pole stood. The' single fact consistently regarded as operative is that the defendant had placed the object in an unreasonably dangerous spot.

Be that as it may, it is now urged that the defendant should be considered as a private landowner whose right to use his land would be unduly restricted by the imposition of a duty to travelers on the abutting highway. It seems strange to me to accord this defendant a privilege which it would otherwise lack simply because —■ so far as appears from the record before us—it had trespassed onto someone else’s property in erecting its pole. However, even assuming that it is proper to treat the defendant as if it owned the land, I do not believe that that circumstance is sufficient to enable it to maintain its poles without regard to the danger thereby occasioned the public.

No one will, or should, dispute the proposition that one may not use his land in disregard of the rights of others. Sic utere tuo ut alienum non laedas is a maxim reflecting a truism having its origin in the ancient common law. Indeed, as Judge Cardozo noted in Hynes v. New York Cent. R. R. Co. (231 N. Y. 229, 235), although landowners are not bound to regulate their conduct in contemplation of trespassers intruding upon private structures, such “ [1] andowners are bound to regulate their conduct in contemplation of the presence of travelers upon the adjacent public ways.” (See, also, Prosser, Law of Torts [3d ed., 1964], § 57, pp. 359-360; 2 Harper & James, Law of Torts [1956], § 27.4, p. 1445; Restatement, 2d, Torts, § 368, pp. 268-271.) This duty is nothing more or less, as Prosser put it {loo. cit.), than a concomitant of the “ obligation [imposed] upon the occupiers of abutting land to use reasonable care to see that * * * passage [on the highway] is safe” and, added Prosser, [t]he status of a user of the highway has been extended to those who stray a few feet from it inadvertently.” Even more explicit and pointed is the Restatement’s black letter declaration (Restatement, 2d, Torts, § 368, p. 268):

“A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm hereby caused to persons who
“ (a) are traveling on the highway, or
“ (b) foreseeably deviate from it in the ordinary course of travel.” (Emphasis supplied.)

The courts of this State have long recognized the obligation of an abutting landowner. It has been held in a number of cases that one who, for instance, maintains an excavation on his land, so close to the highway that a pedestrian making a mis-step falls into it, is liable for the injuries caused. (See, e.g., Friedel v. Coffin, 214 N. Y. 698; Beck v. Carter, 68 N. Y. 283, 291; Kelly v. Sabin Estates, 279 App. Div. 348, 349; Thompson v. New York Cent. & Hudson Riv. R. R. Co., 41 App. Div. 78, 81.) To be educed from these decisions is the principle that, although an owner whose land abuts upon a highway is not liable to a trespasser, he may nevertheless be answerable for maintaining a dangerous condition so close to the public thoroughfare that a traveler is injured by a slight and inadvertent deviation ”. (Kelly v. Sabin Estates, 279 App. Div. 348, 349, supra.) These cases, it is true, deal with pedestrians and not with motorists but it may not be reasonably suggested that a property owner owes less of a duty to motorists than he does to pedestrians. It is perfectly apparent that a greater need exists to protect the motorist from poles or other conditions maintained by the owner just off the traveled portiohf of the road not only because of the automobile’s greater speed but also because of the driver’s reduced visibility and shorter reaction time.

The pole in the present case, but seven inches from the highway, was so close to its traveled portion that the jury was certainly warranted in finding that it was a danger to moving automobiles. What difference if the pole was on private property rather than public land? In either case, it was clearly foreseeable that a car might swerve a few inches from the roadway, even though the man at the wheel was driving carefully. Not even the owner of the land — much less a utility company on another’s property—should be privileged to maintain a pole so near the road that a miniscule deviation, a millisecond of inadvertence by the driver, would cause a car to strike it.

It does not follow, as the majority suggests (opn., p. 299), that to allow a recovery in this case would “ require a landowner to remove every tree, fence, post, mailbox or name sign located on his property in the vicinity of the highway ”. There are substantial differences between a utility pole and, for example, a mailbox or a name sign. In each case, the jury must determine whether it was reasonable to place the particular object involved, having in mind its nature and purpose, at the spot where it was being maintained. There may be good and sound reasons for constructing an item such as a mailbox close to the highway but neither Con Ed nor anyone else claims that a utility pole would not be able to fulfill its function equally well if it were located seven feet, instead of seven inches, from the highway.

Since, then, the jury found that Con Ed’s pole created a dangerous condition to oncoming automobiles, it should be held liable to the plaintiff for injuries suffered, even if that pole happened to be on another person’s private property. I would affirm the judgment in favor of the plaintiff.

Judges Scileppi, Bergan and Breitel concur with Judge Jasen; Chief Judge Fuld dissents and votes to affirm in a separate opinion in which Judges Burke and Gibson concur.

Judgment reversed, without costs, and the complaint dismissed. 
      
      . When the pole was originally erected in 1929, it stood some five feet from' the edge of the traveled portion of the road. However, in 1941, the State widened the traveled portion of the highway, utilizing its entire right of way.
     
      
      . The plaintiff: also brought an action against the driver of the car, Malkan, which was settled prior to trial for $10,000.
     
      
      . This rule, of course, does not apply when the evidence clearly indicates that the negligence of the operator of the vehicle involved was the proximate cause of the accident. (Darling v. State of New York, 16 N Y 2d 907; Kinne v. State of New York, 8 A D 2d 903, affd. 8 N Y 2d 1068.)
     
      
      . The jury’s verdict of $260,000 was reduced by the Appellate Division to $155,000.
     