
    Patrick Cuilo, Respondent, v. The New York Edison Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    April, 1914.)
    Nuisance — what constitutes — obstruction in city streets — where obstruction serves some public purpose.
    Automobiles — action to recover damages for injuries to chauffeur— evidence — nuisance.
    An obstruction in a city street rendering it dangerous and unfit for the use of the traveling public is prima facie unlawful, and constitutes a nuisance. But where an obstruction in a street serves some public necessity, is temporary in its nature and reasonable in degree, it does not constitute a nuisance, and, unless the surrounding circumstances conclusively show that-the obstruction was either unnecessary or unreasonable, the At the same time that a subway company was digging a trench on the south side of a street near its intersection with another, for conduits to receive electric wires, defendant, an electric light company, was engaged in making temporary connections with the houses on the same street and for this purpose required tools and gasoline. It stored the tools in a cart placed against the curb on the north side of the street and left under the cart a quantity of gasoline contained in a can which was proof against leakage or explosion. While plaintiff’s chauffeur was proceeding through the passageway between the cart and the trench another automobile attempted to turn into the same space, whereupon plaintiff’s chauffeur attempted to back and collided with the tool cart. The force of the collision broke the rear lamp on plaintiff’s car, flattened out the can of gasoline under the cart and the flame from the lamp caused an ignition of the gasoline. In an action to recover damages to plaintiff’s automobile, the evidence showed that even with the cart in the street room was left for traffic io pass in single file and that defendant was lawfully doing work at the time on the street for the convenience and necessity of the abutting owners. as to whether it constitutes a nuisance is one of fact.
    
      Held, that the direction of a verdict in favor of plaintiff on the theory that defendant's cart and gasoline tank were an unlawful obstruction in a public street, and constituted a nuisance as a matter of law, was error for which the judgment should be reversed and a new trial ordered.
    Appeal by the defendant from a judgment of the City Court of the city of New York, entered upon a verdict rendered in favor of the plaintiff upon an assessment of damages by direction of the court and from an order denying a motion for a new trial.
    Beardsley, Hemmens & Taylor (Thomas H. Beardsley, of counsel), for appellant.
    ' J. Lester Fierman (Henry S. Mansfield, of counsel), for respondent.
   Lehman, J.

The plaintiff has brought an action for damages suffered by the collision of an automobile owned by him with a tool cart belonging to the defendant, under which was standing a can of gasolene. It was shown at the trial by the defendant that the accident occurred about half past three in the morning. At that time the plaintiff’s automobile was proceeding in a lawful manner through Forty-seventh street. Near the intersection of that street with Sixth avenue, the Consolidated Telegraph and Subway Company was digging a trench on the south side of the street for the. purpose of installing conduits for the reception of electric wires. At the same time the defendant was engaged in making temporary connections with the houses on the street by means of electric wires strung along the street. For this purpose it required tools and gasolene. It stored these tools in a cart placed against the curb on the north side of the street, and left the can of gasolene under the cart. Between this cart and the trench on the opposite side of the street, there was an open space sufficient to allow the passage of a single automobile. - The trench and the cart were properly marked by lamps, and the gasolene was contained in a patent receptacle which repeated tests had shown to be proof against leakage or explosion either by concussion or fire.

The defendant’s workmen were at the time of the accident actually engaged in the prosecution of der fendant’s work, and some of the workmen were at that time about to go home, having finished their work for the night. The plaintiff’s chauffeur was proceeding through the passageway between the cart and the trench when an automobile coming up Sixth avenue attempted to turn into the same space. The plaintiff’s chauffeur thereupon attempted to back up and in so doing collided with the tool cart. The force of the collision broke the rear lamp on plaintiff’s car, and also flattened out the can of gasolene under the car. The flame from the lamp caused an ignition of gasolene. Except by inference there is no proof whether the gasolene which ignited came from the defendant’s gasolene can, or from the gasolene tank of plaintiff’s car. Upon this proof the trial justice directed a verdict in favor of the plaintiff on the theory that the defendant’s cart and gasolene tank were an unlawful obstruction of a public street, and therefore constituted a nuisance as a matter of law. The defendant now appeals from this judgment, urging first that the complaint is based on negligence, and not on nuisance, and second, that even if the complaint was- baséd on nuisance, the evidence presented by the defendant raised at least a question of fact for the jury.

The complaint undoubtedly contains all the aliegat ions essential and appropriate to an action for negligence, and nowhere contains any direct allegation of nuisance. In the case of Uggla v. Brokaw, 117 App. Div. 586, the court said, at page 591: “It is not necessary to expressly charge that the defendant created or maintained a nuisance (citing cases). Under our system of pleading, if the essential facts are stated, it is not imperatively required that they should he characterized, although it is better to characterize them, for that tends to remove doubt as to the pleader’s theory. In some instances, as already observed, a recovery may be had upon either theory, and the difference between nuisance and negligence is not very plainly marked. A structure or business may be lawful, and yet become a nuisance through negligence in the maintenance or use thereof. (See Dunsbach v. Hollister, 49 Hun, 352 ; affd., 132 N. Y. 602 ; Clifford v. Dam, 81 N. Y. 52.)”

In this case the plaintiff alleges that the defendant “* * * left a tool cart belonging to the defendant in front of premises 103 W. 47th St. in said City, under which was standing a can of gasolene, without proper and suitable lights, signals, guards and coverings, thus rendering the highway in front of said premises in a dangerous and unfit condition for the use of the traveling public.”

The gravamen of the complaint, therefore, as I view it, is an obstruction of the public street, rendering it in a dangerous and unfit condition for the use of the public. An obstruction in the city street rendering it dangerous and unfit for the use of the traveling public is prima facie an unlawful, obstruction and in itself constitutes a nuisance, and the complaint therefore sets forth a cause of action if the acts alleged and summarized by the word ‘ thus ’ ’ are sufficient to bear out the conclusion of the pleader. These acts so far as material are that the defendant left a tool cart with a can of gasolene under it standing in a public street, without proper and suitable lights and signals.

If the mere fact of the leaving of the tool cart and can of gasolene is in itself prima facie an unlawful obstruction, then I think that the trial justice correctly held that the allegations of failure to provide proper guards and signals may be disregarded until the defendant has affirmatively shown that the leaving of the cart and gasolene was in this case a lawful act which would become a nuisance only through negligence. See Berger v. Content, 47 Misc. Rep. 390 ; Clifford v. Dam, 81 N. Y. 52.

It seems to me, however, that the trial judge erred in holding that the cart and gasolene can constituted a nuisance as a matter of law. In the case of Callenan v. Gilman, 107 N. Y. 360, the Court of Appeals said: “ The primary purpose of streets is use by the public for travel and transportation, and the general rule is that any obstruction of a street or encroachment thereon which interferes with such-use is a public nuisance. But there are exceptions to the general rule born of necessity and justified by public convenience. * * But all such interruptions and obstructions of streets must be justified by necessity. It is not sufficient, however, that the obstructions are necessary with reference to the business of him who erects and maintains them. They must also be reasonable with reference to the rights of the public who have interests in the streets which may not be sacrificed or disregarded. Whether an obstruction in the street is necessary and reasonable must generally be a question of fact to be determined upon the evidence relating thereto.”

The authority of this case has never been questioned, and the rule has always been applied that when an obstruction of a street serves some public necessity, is temporary in its nature, and reasonable in degree, it does not constitute a nuisance, and that, unless the surrounding circumstances show conclusively that the obstruction was either unnecessary or unreasonable, the question of whether it constitutes a nuisance is a question of fact. In this case the evidence shows that, even with the cart in the street, room was left for traffic to pass in single file; that the defendant was lawfully doing work at the time on the street for the convenience and necessities of the abutting owners, and that in the prosecution of such work it required tools and gasolene, and upon this evidence it seems to me quite clear that the court could not say that the present obstruction during the pendency of the work constituted a nuisance as a matter of law. The authorities cited by the plaintiff are entirely consistent with this view. In the case of Cohen v. Mayor, 113 N. Y. 532, the court expressly recognizes the rule as stated in Callanan v. Gilman, 107 id. 360, but held that where a grocer used the street every night to store his wagons used in his private business, he necessarily unreasonably interfered with the public convenience. In Warden v. City of New York, 123 App. Div. 733, the court showed that the contractor had in his contract agreed not to obstruct the sidewalk in his work, and the surrounding circumstances were such that the jury were bound to find that the obstruction was both unreasonable and unnecessary.

The plaintiff further urges that the presence of an explosive like gasolene in the street is of itself so manifestly a source of danger that its presence in itself constitutes a nuisance. The evidence, however, shows that the gasolene was so protected that it was not explosive, and clearly raised a question of fact as to whether its presence on the street was unreasonable. Since every automobile using the streets must carry a considerable amount of gasolene it would certainly seem unreasonable to hold that the mere presence of a similar quantity in a properly protected can on the street .for use in work done on the street constitutes a nuisance as a matter of law.

Judgment should therefore be reversed and a new trial ordered, with costs to appellant to abide the event.

Seabury and Bijur, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  