
    Jean Morello, as Administratrix of the Estate of Philip Morello, Deceased, Appellant, v. Brookfield Construction Co., Inc., et al., Respondents, et al., Defendant.
    Argued November 19, 1957;
    decided February 28, 1958.
    
      
      Louis E. Schwarts and Lewis J. Alessio for appellant.
    
      William F. McNulty, Orlando J. Rudser and David G. Fitsmaurice for Brookfield Construction Co., Inc., respondent.
    
      
      Peter Campbell Brown, Corporation Counsel (John A. Murray and Seymour B. Quel of counsel), for City of Néw York, respondent.
    
      
      John Nielsen and John P. Smith for W. E. Blume, Inc.,
    respondent.
   Fuld, J.

While crossing the street underneath a recently constructed overpass of the Bronx River Parkway, Philip Morello was hit by an auto driven by defendant Mario Murzi and died of the injuries he sustained. Alleging that insufficient lighting and debris left on the sidewalk beneath the overpass had contributed to the accident, the plaintiff, as administratrix of the deceased’s estate, joined as defendants, in addition to Murzi, Brookfield Construction Co., Inc., W. E. Blume, Inc., and the City of New York. She sued Murzi in negligence and the other three in both negligence and nuisance, the nuisance count being dismissed by the trial court at the end of the case. The jury returned a verdict against defendant Murzi in the sum of $40,000, but found the other three defendants not negligent.” Upon appeal by the plaintiff from the judgment in favor of the latter — defendant Murzi took no appeal — the Appellate Division unanimously affirmed and this court granted leave.

The accident occurred at about 7 o’clock of a December evening in 1950 at a point where the Bronx River Parkway spans East Tremont Avenue between Morris Park Avenue on the west and Van Nest Avenue on the east in the Borough of The Bronx. The sole evidence as to how the accident happened is to be found in the examination before trial of defendant Murzi. He was driving east on Tremont Avenue, and his former mother-in-law, who “ didn’t see a thing ”, was with him. Murzi declared that, “ as soon as ” he “ got on into the middle ” of the “ highway structure,” he saw a man directly in front of ” him; that he “ swung quickly toward the left trying to avoid hitting him ”, but was unable to do so.

The overpass in question was constructed by defendant Brook-field as the general contractor of the State of New York. Although the bridge deck had been completed in August of 1950 — the contract completion date was March, 1951 — some work, including installation of the lights under the structure, landscaping and other minor operations still remained to be done. The contract between Brookfield and the State called for the installation of two rows of three lights each in the ceiling of the overpass, and such work was in the hands of defendant Blume, the lighting subcontractor. There was neither provision nor requirement for a temporary lighting system, and no lights had been installed by December 18, 1950, the date on which the accident occurred. However, there were, on the northerly and southerly sides of East Tremont Avenue at both the easterly and westerly approaches to the overpass, large warning signs, illuminated at night by lights, reading

“ DANGER CONSTRUCTION AHEAD

Proceed With Catxtioh ”

It is plaintiff’s theory, and it is nothing more than theory based on conjecture and guesswork, that her husband was on his way home, that he left the subway at the northwest corner of East Tremont and Morris Park Avenues, that he walked east along the north sidewalk until he found his way blocked by masses of debris and rubble under the overpass, that he was then forced into the street and that he was struck by the car while attempting to cross to the south side. As already indicated, there was no evidence to support this elaborate and finespun theory. Indeed, the only basis for the claim that Morello was crossing from the north to the south sidewalk is contained in some inconclnsive testimony of defendant Murzi in a deposition taken on his examination before trial. And, in point of fact, such evidence, while usable against Blume, was not admissible against either Brookfield or the City, since neither had been given notice of the examination and neither was represented when it was conducted.

The only testimony bearing on the obstruction of the sidewalk and its impassability came from the police officer present when the accident occurred. He declared that the north side of the street in the area in question “wasn’t as passable ” as the south side; there were, however, no ‘ unusual obstructions, ’ ’ merely “ chunks of stone ” and, perhaps, a rock measuring “ a foot and a half by a foot by six inches.” The State’s engineer testified that both sidewalks under the overpass were completed by October of 1950 and were thereafter in “ very good condition ’ ’ and that earlier landslides from the slope next to the north abutment had ceased by the end of September, 1950. He later acknowledged that he had been mistaken when he declared that both sidewalks had been completed, but, he added, the portion not finished “had been graded with cinders and compacted so that pedestrians could pass over them without difficulty.” He did not, however, change his testimony with respect either to the absence of debris or to the cessation of landslides after September, 1950.

As to the adequacy of the lighting under the structure, all we need say is that the testimony was conflicting. Witnesses for Brookfield and the plaintiff — the State’s resident engineer on the Brookfield contract and Brookfield’s president — testified, in substance, that visibility beneath the overpass was almost as good as it was outside and that the intensity of the light within and without was about the same. On the other hand, defendant Murzi and his mother-in-law both stated that the underpass was “ dark.”

At the close of the trial, the court held that plaintiff’s theory “ that the proximate cause of the accident was the condition of the sidewalk ’ ’ was ‘1 decidedly farfetched ’ ’ and ruled it out of the case; in addition, it dismissed the nuisance cause of action as “ merged ” with the negligence count and as “ confusing to a jury. ’ ’ In affirming the judgment entered on the jury’s verdict in favor of the several defendants, the Appellate Division, while disapproving what it termed the Trial Justice’s “ excessive participation in the trial ”, concluded that the plaintiff suffered no prejudice. It is to these three points that the plaintiff directs her arguments and upon which she bases her appeal.

As to the question of debris on the sidewalk, the trial court properly eliminated it from the case. It concerned only defendant Brookfield and the City in any event, for, as plaintiff’s counsel himself acknowledged, defendant Blume’s work had no connection with the construction and maintenance of the sidewalk. And, as already noted, since defendant Murzi’s deposition before trial was not admissible or usable against either Brookfield or the City, there is no evidence as to them of the direction from which Morello had come when struck by the car and no evidence of the direction he was facing. Indeed, apart from Murzi’e testimony, there is not the slightest intimation that Morello had left the subway at the place suggested by the plaintiff, that he had been walking east or, of prime significance, that he was even on the north sidewalk. All this being so, whether or not the dirt and stones, by no means an obstruction rendering the sidewalk impassable (cf. O’Neill v. City of Port Jervis, 253 N. Y. 423), forced Morello off the sidewalk and caused him to cross the street at that point, is a matter resting on the merest speculation. The trial court was unquestionably justified in ruling out of the case the theory that the condition of the north sidewalk was a proximate cause of the accident.

Equally warranted and proper was the court’s dismissal of the nuisance count. Where a nuisance arises solely from negligence, the nuisance and negligence elements may be so intertwined as to be practically inseparable ” (McNulty v. Ludwig & Co., 153 App. Div. 206, 213) and “ any attempt to separate them is a useless task.” (Khoury v. County of Saratoga, 267 N. Y. 384, 389.) In such a case, the single wrong done may be characterized as either negligence or nuisance (see, e.g., McFarlane v. City of Niagara Falls, 247 N. Y. 340, 345), and it does no harm if it is presented to the jury in only one aspect. The case is, of course, to be differentiated from one where the nuisance is an “ absolute ” nuisance, involving the creation of a noxious or hazardous condition irrespective of negligence. (See McFarlane v. City of Niagara Falls, supra, 247 N. Y. 340, 343.)

In the present case, the issue of sidewalk obstruction having been removed from the case, we are left with but one wrong, that of failing to provide adequate lighting in the underpass. There being no question of an absolute nuisance, it was of no importance whether the plaintiff characterized the wrong of which she. complained as negligence or nuisance arising solely from negligence. When the jury failed to find the defendants negligent insofar as the lighting was concerned, it follows that the jury could not properly have found them guilty of maintaining the nuisance alleged. In short, if negligence is the gravamen of the wrong, if one negligently uses his property in such a way as to create a dangerous or noxious condition resulting in another’s injury, the offender may be guilty either of negligence or of maintaining a nuisance stemming from negligence. It matters not, as we have already indicated, which label the plaintiff employs, for quite obviously he may not have a double recovery. The trial court’s submission of the case to the jury upon the single count of negligence was, therefore, proper.

As to the other two contentions made by the plaintiff, we may be very brief. With respect to the court’s refusal to charge several requests, it is sufficient to note that, quite apart from the vagueness of some, a perusal of the instructions given indicates that the judge charged the substance of all of them. And, with respect to plaintiff’s final plaint, that the judge’s participation in the trial exceeded the bounds of fairness, we need but observe, as did the Appellate Division, that, while some of his questioning may have been “ excessive ”, it could not have occasioned any prejudice or harm. Examination of the record discloses that he merely sought to clarify facts left obscure and, indeed, demonstrates that his questioning as often pointed up matters favorable to the plaintiff as to the defendants.

The judgment of the Appellate Division should be affirmed, with costs.

Chief Judge Conway

(dissenting). On December 18, 1950, at about 7:00 p.m., plaintiff’s intestate, Philip Morello, while crossing East Tremont Avenue in New York City, walking from north to south, was struck and killed by the automobile of defendant Murzi which was traveling in an easterly direction on East Tremont Avenue. The accident occurred at a point underneath an overpass which had been constructed by Brookfield Construction Co., Inc., for the State of New York. Under its contract with the State, Brookfield undertook to maintain pedestrian, trolley and vehicular traffic and to install the necessary electrical equipment for lighting under the overpass. Brookfield entered into a subcontract with W. E. Blume, Inc., under which contract Blume was to install lights and lighting fixtures under the overpass. It is admitted that throughout September, October, November and up to and including the date of the accident, the requisite lights had not been installed, and that throughout that entire period of time there were no lights of any kind lighted under the overpass.

The decedent was employed as a dress cutter on East 42nd Street in New York City. At about the time of the happening of the accident decedent was expected to have been home from work. He lived on the south side of East Tremont Avenue at No. 1230. The nearest subway station to and from his place of employment was located on the westerly side of Morris Park Avenue about 400 feet north of the point where Morris Park Avenue intersects East Tremont Avenue. Decedent’s home was about 300 feet east of that intersection. Thus, in order to reach his home from the subway station, it was necessary for bim to walk south on Morris Park Avenue for about 400 feet, and then to walk in an easterly direction on East Tremont Avenue, for about 300 feet, passing under the overpass.

The theory of plaintiff’s action against Murzi was that he was negligent in the operation of his automobile. Insofar as the defendants, Brookfield, Blume and the City of New York were concerned, plaintiff asserted two causes of action. One cause of action was based on negligence and the other on nuisance. The plaintiff contended that those defendants were concurrently negligent and guilty of maintaining a nuisance because of the construction of an overpass across a public street and the failure, for a long period of time, to provide illumination thereunder, contrary to the provisions of the construction contracts as well as their common-law duty. More specifically, plaintiff urged that the darkness under the overpass necessitated the sudden adjustment of vision by motorists and resulted in the failure of defendant, Murzi, to see the decedent in time to avoid striking him; that the north sidewalk under the overpass was dangerous because it was in darkness and that it was so obstructed by rocks and debris, which was caused by the defendant’s activities and so suffered to exist, that it necessitated the decedent’s leaving the north sidewalk to cross the street in order to reach the south sidewalk.

The complaint, insofar as it asserted a cause of action for nuisance, was dismissed by the trial court. The trial court also eliminated from the case the plaintiff’s theory of action sounding in negligence to the effect that, because the north sidewalk was obstructed, the decedent was required to cross the street, and that such could have been a proximate cause of the accident. The case was submitted to the jury on only the following bases of liability:

One, was there such an insufficiency of light or illumination beneath the overpass as to reduce visibility?

Two, was the visibility so reduced or obliterated so as to affect Murzi’s driving?

Three, if Murzi’s driving was so affected, did that in any way contribute — was it in any way causally or proximately related to the contact of Murzi’s car with the decedent?”

The jury returned a verdict in favor of plaintiff against defendant, Murzi, and in favor of the defendants, Brookfield, Blume and the City of New York, as against the plaintiff. Defendant Murzi did not appeal to the Appellate Division but plaintiff appealed with respect to the determination in favor of the other defendants. The Appellate Division affirmed.

On the present appeal from the adverse determination of the Appellate Division, the plaintiff argues:

(1) That the theory of plaintiff’s action that the obstruction on the north sidewalk could have been a proximate cause of the accident, was erroneously eliminated from the case;

(2) That the Trial Judge erroneously dismissed the plaintiff’s cause of action sounding in nuisance; and

(3) That the Trial Judge’s conduct in excessively examining and cross-examining witnesses and the manner in which he did so was prejudicial to the plaintiff in the eyes of the jury and constituted a denial of a fair trial as a matter of law.

We find it unnecessary to consider the second and third grounds urged, for we are persuaded that the plaintiff is entitied to a new trial upon the ground that the trial court should have submitted to the jury the questions of whether the obstruction on the north sidewalk forced decedent into the street and whether such was a proximate cause of the accident leading to decedent’s death.

Because of the circumstances surrounding the happening of the accident, there was no direct evidence of the facts that decedent had been walking along the north sidewalk underneath the overpass and that, because that sidewalk was obstructed, he was compelled to cross over to the south sidewalk in the process of which he was killed. Nevertheless, there was evidence adduced upon the trial from which such an inference could reasonably and properly have been drawn. As mentioned earlier, there was evidence of the location of the subway station and the location of decedent’s home. There was evidence that he was expected home from work at about the time when the accident occurred. There was evidence that he was required to pass beneath the overpass to reach his home, and that, after the accident the position of his body in the street was five feet from the curb of the south sidewalk. The decedent’s home was on the south side of East Tremont Avenue and his presence in the street in such close proximity to the south sidewalk indicated that, at the time of the accident, he was in the process of crossing the street from the north sidewalk to the south sidewalk underneath the overpass. That the north sidewalk was obstructed on the night of the accident was established by the testimony of a police officer. The obstructions were described as chunks of stone, rocks, dirt and the remnants of landscaping that was being carried on in that area. It appeared that, in September of 1950, rain had washed down some soil from the slope onto the north sidewalk underneath the overpass. A State’s engineer admitted that land had washed down underneath the overpass on the north side, but denied that it carried onto that sidewalk. The engineer testified that the north sidewalk had been clear, the work completed thereon, and was in good condition in October, 1950, and that he did not remember any unusual condition that would put debris back onto the sidewalk after that time. When the engineer was later recalled to the stand, however, he voluntarily admitted that the testimony — that the work on the sidewalk had been completed in October, 1950 — had been erroneous, as he had since ascertained by reference to his diaries. The police officer who had testified to the obstructions on the north sidewalk further stated, in effect, that, because of the darkness under the overpass, pedestrian travel on that obstructed sidewalk was doubly hazardous.

We recognize that the evidence in support of plaintiff’s theory was not overwhelming. However, we are unable to brand it “ far-fetched.” In our judgment the question should have been submitted to the jury for their consideration. This was a wrongful death action. Decedent was not able to testify as to how the accident happened. The next best thing to do, as was done here, was to prove facts from which a reasonable inference could have been drawn as to why he happened to have been crossing the street at the point where the accident occurred. As our court has said, “in a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence ” (Noseworthy v. City of New York, 298 N. Y. 76, 80). In the light of that principle we consider the plaintiff’s proof sufficient to warrant the theory’s submission to the jury. An unreasonable obstruction of a public sidewalk which compels a pedestrian to venture into the street where he is struck by a passing automobile is capable of imposing liability (see O’Neill v. City of Port Jervis, 253 N. Y. 423; Majka v. Haskell, 301 N. Y. 206). The cited cases are sought to be distinguished on the basis that there the sidewalks were so completely blocked that they were impassable. That, in our opinion, has no force whatever. The fact that there the sidewalks were impassable and here the sidewalk was not so completely blocked as to be in fact impassable is a difference in degree only. Whether the decedent was forced into the street was for the jury to decide.

The judgments of the Appellate Division and Trial Term, insofar as appealed from, should be reversed and a new trial granted, with costs to abide the event.

Judges Desmond, Dye and Van Vooehis concur with Judge Fund; Chief Judge Conway dissents in an opinion in which Judge Feoessel concurs; Judge Burke taking no part.

Judgment affirmed.  