
    Edward J. Wittleder, an Infant, by Edward G. Wittleder, his Guardian ad Litem, Respondent, v. The Citizens’ Electric Illuminating Company of Brooklyn, Appellant.
    
      Negligence —• children playing upon a stairway of an elevated railroad company — they do so presumably by its permission — a live electric wire strung close to the stairway is a nuisance.
    
    Where it appears that children are in the habit of playing upon a stairway leading to an elevated railroad station it will, in the absence of proof to the contrary, be presumed that they do so by the express permission of the railroad company or under an implied license.
    
      An electric illuminating company which places a live electric wire in such close proximity to the stairway as to menace the safety of a person who inadvertently throws his arm over the rail of the stairway is guilty of active and not merely of passive negligence; the creation of such a condition is the creation of a nuisance.
    Rearg-ument of an appeal by the defendant, The Citizens’ Electric Illuminating Company of Brooklyn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of April, 1899, upon the verdict of a jury for. $8,000, and also from an order entered in said clerk’s office on the 14th day of April, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    This action was brought to recover damages for personal injuries sustained by the plaintiff while playing upon a stairway leading to an elevated railroad station in the borough of Brooklyn, in consequence of his hand coming in contact with an electric wire maintained by the defendant upon the elevated structure in proximity to the stairway.
    
      John Fotnnan [lewis II. Freedman with him on the brief], for the appellant.
    
      Foster I. Baohus, for the respondent.
   Hatch, J.:

We do not find it necessary to discuss any of the questions raised by the counsel for the appellant further than as discussed in our former decision in this case (Wittleder v. Citizens’ El. Illuminating Co., 47 App. Div. 410), except the point raised, and argued at considerable length, that the defendant owed the plaintiff no duty. In reaching this conclusion we make assumption of fact entirely favorable to the defendant’s contention.

Serious complaint is made that in our former opinion we assumed that the defendant had not established any right to have and maintain its wires upon the elevated railroad structure. Whatever the fact may be in this respect, for the disposition of this case we assume that the defendant had lawful authority to place its wires upon the structure and to use such structure for that purpose. The defendant being lawfully upon the structure, what were the rights of the boy thereon, and what duty, if any, did the defendant owe 'to him ? There is no proof in the case to show what the attitude of the railroad company was toward this hoy, or to his companions who were upon the structure at the time of the injury. It is assumed by the defendant that the stairway leading to the elevated station is private property; that it is in no sense a public highway, and is furnished solely by the railroad company as a means of ingress to and egress from its elevated station for passengers conveyed by the railroad. This conclusion is derived, so far as appears, from the character of the structure and the use to which the stairway is generally put; and the argument inferentially assumes that the court will take judicial notice of these facts. Assuming that the learned counsel is right in his assumption of fact that the purpose of the stairway is to enable passengers to reach and leave the elevated station, yet, as it is private property, the railroad company could authorize its use for any other purpose not constituting a nuisance, so far as such use did not defeat its chartered obligation to- transport passengers and fulfill its public duties. Indeed the stairway was not primarily constructed as a support for the defendant’s wires, but it was doubtless competent for the railroad company to authorize its use for such purpose. It was equally competent for the railroad company to authorize the use of its stairways for other purposes within the limitation we have suggested. It could invite any person or persons to come thereon, even though they were not intending passengers. The defendant could make no complaint of such act; it had no more interest therein or thereon, except to have its wires supported, than did the boy who was injured, or any other person. The record shows that children were in the habit of using this stairway and platform, and frequently played thereon; non constat but that they came thereon by express permission of the railroad company or under an implied license. The presumption is, in the absence of proof to the contrary, that the boy’s presence upon the stairway -was rightful. (Lawson Presump. Ev. [2d ed.] rule 16, p. 98.) In order to overthrow the presumption, proof that he was a trespasser is required. (2 Green!. Ev. [15th ed.] § 613; 1 Jones Ev. §§ 71, 72.) There is no proof in this case showing that the boy was. a trespasser, and the court cannot take judicial notice of such fact. The case must, therefore, be disposed of upon the basis that the boy was rightfully upon the stairway ; and, if so, the defendant owed hiña the same measure of care it owed to any other person rightfully thereon. In this respect the jury were authorized to find that the wire was so placed as to menace the safety of a person who should inadvertently throw his arm over the rail; and as the danger of injury was very great on account of the hidden force which the wire carried, negligence could be properly predicated of the placing of the wire in such close proximity to the stairway as to permit of contact by such an act.

Under the proof in this case, the most, we think, which can be claimed by the defendant is, that the boy was upon the stairway under an implied license. At least the jury would be authorized so to find. Assuming such to be the fact, and that the defendant could avail itself of the same rule as could the owner of the property, we think enough appeared to charge the defendant with negligence. The measure of the obligation under such circumstances has been fairly well defined in this State. For mere passive negligence the defendant would not be liable. (Nicholson v. Erie Railway Co., 41 N. Y. 525.) That is, an omission to do a proper act does not create liability, while the intervention of an active agency does. (Byrne v. N. Y. C. & H. R. R. R. Co., 104 N. Y. 362.)

There is a still further distinction. The mere omission to do an act, while not creating liability, is nevertheless dependent upon the fact that the thing which inflicts the injury is not of itself obviously dangerous. Thus, in Larmore v. Crown Point Iron Co. (101 N. Y. 391), the person going upon the • land without invitation was injured by a machine, not in itself obviously dangerous, although defective, which defect, in the exercise of reasonable care, could have been discovered and remedied. This condition was held to exempt from liability, as under the circumstances the defendant owed no duty to the person injured. It is clear, from the decision of this case and of the Byrne Gase (supra) which followed it, that the rule would not obtain if the instrument in use was obviously dangerous, and especially would this be true if the thing itself was filled with extreme danger not apparent from observation. In the present case the stringing of a live electric wire, contact with which will inflict severe injuries, if it does not kill, in such close proximity to a thoroughfare along which large numbers of people pass, who are liable to come in contact with it, is an act so dangerous in character and so liable to inflict injury as to remove the case from the authority of those cases exempting from passive negligence, and place it in the category of active negligence. The creation of such a condition is the creation of a nuisance (Heeg v. Licht, 80 N. Y. 579; 1 Wood Nuis. [3d ed.] 1), and of a nuisance so dangerous in character as to scarcely exempt from liability for injury sustained therefrom by a trespasser. We do not find it necessary to determine in this case that the defendant would be exempted from liability if the boy was, in fact, a trespasser, nor do we determine that the recovery may not be upheld if he be so treated. We are not required to go this length in order to support this recovery, as there is no proof showing that the boy at the time was a trespasser.

The other questions in' the case have been fully covered by our former decision.

It follows that the judgment should be affirmed.

Judgment and order unanimously affirmed, with costs.  