
    John Mulvey, Respondent, v. The City of New York, Defendant, Impleaded with Tide Water Building Company, Appellant.
    First Department,
    July 12, 1906.
    Negligence — municipal permit to leave building material in street— injury to truckman by driving into beam unlawfully projecting into street — contributory negligence of driver.
    When a permit issued to a building contractor authorizes the use of one-third of the carriageway of a city street for placing material, but expressly provides that no materials shall be placed “ within two (2pfeet of any railroad track,” the latter clause should not be construed as an extension of the former, but is intended as a limitation upon the permit in case there should be a car track within the space granted or within two feet thereof, and any material placed beyond these limits constitutes a nuisance.
    Iu an action by the driver of a truck, who was thrown and injured in the daytime by running into an “I” beam unlawfully projecting from a pile of similar beams to within one foot and eight- inches of a street car track along which the truck was moving, where it appears that plaintiff was driving at a walk; that he had driven past the same place on many prior occasions without difficulty; that street cars were not running at the time, and that it was customary to drive in the car track; that the “I" beam which caused the accident was near the ground and projected far beyond the other beams in the pile, and where it appears that a large truck had just passed, going in the opposite direction, and the evidence might permit the inference that the danger of a collision diverted the attention of the plaintiff from the material in the road, the contributory negligence of the plaintiff is a question for the jury.
    It is proper to charge that the fact that a person passing through a street knows it to be obstructed by building material should be taken into consideration by the jury in determining the amount of care which he should exercise, and that there is a difference in the care required under such circumstances from that required when the street is clear.
    McLaughlin, J., dissented, with opinion.
    Appeal by the defendant, the Tide Water Building Company, from a judgment of the Supreme Court in favor of the plaintiff against the said defendant, entered in the office of the clerk of the county of New York on the 12th day of December, 1905, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 23d day of Hovember, 1905, denying the said defendant’s motion for a new trial made upon the minutes.
    
      Frank Verner Johnson, for the appellant.
    
      Emanuel S. Calm [Edward Lazansky with him on the brief], for the respondent.
   Laughlin, J.

This is an.action for personal injuries alleged to have been sustained through the negligence of the appellant.

On Monday, the 25th day of August, 1902, about noon, the plaintiff was driving a single truck loaded with iron southerly on Hinth avenue. The gear of the truck was six feet eight inches; the left or easterly wheels were traveling in the groove of the easterly rail of the south-bound street railway track and the path of the right or westerly wheels was about one foot and eight inches westerly of the westerly rail. As the wagon reached a point a little north of an elevated railroad pillar on the westerly side, about eighty-four feet northerly of Thirteenth street, the right-hand front wheel came in contact with the end of an “ I” beam which projected from the westerly side of the street at right angles towards the street railway track, and the plaintiff was precipitated from his seat to the pavement, sustaining the injuries to recover for which the action is brought.

The appellant was erecting a building at the northwest corner of Ninth avenue and Thirteenth street, and the surface of the street between the elevated pillars on the west and the westerly line of the street was occupied with building material placed there under its supervision for use in the construction of the building. It had, on the 2d day of June, 1902, obtained a'permit from the proper authorities to use one-third of' the width of the carriageway of the street for placing material near the curbstone and directly in front of said premises.” This permit was in force at the time of the accident. The- carriageway of the avenue was sixty feet in width. The permit, therefore, did not authorize the placing of material in the street more than twenty feet from the westerly curb. The permit also expressly provided that no material should be placed within two (2) feet of any railroad track.” The evidence shows that-the distance from the westerly curb to the nearest car track was twenty-two feet and six inches. The base of the elevated pillar was two feet six inches square, and the distance from the base of the pillar to the westerly rail of the track was two feet six inches. The provision of the permit, prohibiting the placing of material within two feet of any car track was a general provision. It was intended as, a limitation upon the permit in case there should be a car track within the space covered by the permit, or within two feet thereof; and it should not be construed as an extension of the permit to authorize the appellant to occupy more than twenty feet of the carriageway measured from the curb. The appellant, therefore, had no authority to place any material within two feet six inches of the westerly rail of the'westerly street railway track, and any materia,1 nearer the track than two and one-half feet, being unauthorized, constituted a nuisance.

It is evident that this “ I ” beam was placed considerably nearer ,the track than authorized by the permit, for unless it was within one foot and eight inches of the rail, the wheel of the plaintiff’s vehicle would not have come in contact with it. There is evidence indicating that it projected to within one foot of1 the rail; that it had been in that position for two days j that it was within one foot of the ground; that other beams were piled over it one or two feet higher and that .they extended about to but not beyond the pillar. Placing or allowing the “ I ” beam to be placed within that distance of the car track constituted an unlawful obstruction and was a menace to travel. The negligence of the appellant, therefore, was clearly established and is not questioned on this appeal.

The contention that the plaintiff was guilty of contributory negligence is not free from doubt, but we are of opinion that it was a question for the jury.

This was the plaintiff’s first trip along the avenue that day, but he had driven down the avenue two or three times a day for nearly a week before the accident, excepting Sunday, with the same truck and in the same manner. He testified that on each other occasion he noticed the building material piled in front of the premises upon which the appellant was erecting the building, and did not come into collision therewith; and says that on Saturday before the accident in passing the track was free from obstruction, and that he then had no trouble in passing. The plaintiff was sitting on a seat about three feet above the floor of the truck and near the front end. He testified that he was driving on a walk, and that as he approached the point of the accident, he observed a wide truck coming up on the easterly street railway track “pretty lively,” but that it passed him some distance north of where the accident occurred, and that after the truck passed the way was clear with the exception of the building material, but that he did not observe this “ I ” beam until he was falling from the seat; that “ First, as I came along down the street, this building material that I saw at my right hand I didn’t pay any attention to it at all. So that 1 have no idea, and I cannot tell you now how high those beams were piled. I could not tell you how close they were to the track. As to how close I drove to this pile of building material, my left side of the truck — my wheel was on the outside of the track, and that is all. I couldn’t tell you how close this material was to the rail, or anything about it. I don’t know how far away that pile of building material was from my truck as I drove by it. 1 didn’t pay any attention to it.”

Upon the plaintiff’s own testimony there is room for argument that the truck had passed in time for him to observe the location of the building material, but his evidence is open to construction that he did not observe the precise location of the building material owing to the fact that his attention was diverted by the passing truck, from which there might have been a collision, and the jury were justified in so finding on his evidence. With respect to the place where he met the truck, he further testified, “ I said something about a truck approaching me in the opposite direction ; it was just very close to where the accident occurred ; ” and after testifying that the truck passed him before the accident, he further testified on that subject that he was looking ahead to see the truck; “ at the time the accident happened the other truck had just passed me up. About how far I couldn’t tell you — just passed me by.” He also testified that the street cars were not then and had not been running on the avenue, so that vehicles had the uninterrupted use of the tracks. On his direct examination he testified : “ I was on the seat of this wagon driving along and looking, as I thought that everything was clear. I was driving along. The first tiling I knew I ran against something and I gets heaved off, and I didn’t know no more.”-

In view of the fact that this building material was unlawfully placed in a position to endanger travel. along the street railway track, which is a customary .line of travel for vehicles as well as street cars, and of the fact that the plaintiff had recently, on many occasions, passed it without difficulty, and that this “ I ” beam was near the ground and projected far beyond the others above in the pile, and of the fact that plaintiff’s attention was diverted by the passing truck, we are of opinion that it cannot be said, as matter of law, that he was guilty of contributory negligence.

It is claimed that the court erred in refusing to charge a request presented by counsel for appellant. The request was as follows: “ I ask you to charge the jury that the application of the rule your Honor refers to, that a man has a right to assume that the street is unobstructed and safe, does not apply to a case where a man knows that there is building material in the street as he is passing by. Where he knows that the street is obstructed by building material, he is under obligation to use more ordinary care than the individual.”

In answer to this request the court said: “ Further than I have charged I decline to charge on that, except to say that where it is shown that the party knows there is building material, that fact will be taken into consideration by the jury in determining the amount of care which he should -have exercised under that particular circumstance. A street which is not obstructed by building material is quite different from a street that has people passing through it free from obstructions;, that is to say, the amount of care a person passing through it must exercise, under the circumstances, would be affected somewhat by the knowledge that there was building material in the street.” Counsel for the appellant thereupon duly excepted. '

We are of opinion that there was no error in this refusal to charge. The request was unintelligible. It may be that the stenographer has omitted something from the request, but the case having been settled in this form, we must assume that the record shows it as it was presented to the court. Moreover, the remarks of the court in denying the request, properly stated the rule, and the jury were, we think, fully instructed.

It follows, therefore, that the judgment and order should be affirmed, with costs.

O’Brien, P. J., Patterson and Houghton, JJ., concur; McLaughlin, J., dissented.

McLaughlin, J. (dissenting):

I am unable to concur in the prevailing opinion. The plaintiff failed to establish his own freedom from negligence. The accident occurred in the middle of the day. The plaintiff had frequently been over this street, prior to the accident, and knew that building material ivas there piled. There was nothing to obstruct his vision or distract his attention, and it is perfectly obvious that had he exercised the care Avliich the law required of him, the collision which caused his injury would have been avoided.

To permit a jury under such circumstances to determine whether or not he was guilty of negligence was to permit them to make a finding without evidence to support it.

I vote to reverse the judgment and order a new trial.

Judgment and order affirmed, with costs. Order filed.  