
    David H. Munro, Appellant, v. Wells Brothers Company of New York, Respondent.
    Fourth Department,
    December 28, 1906.
    Megligence — horse frightened by hoisting engine —when such engine not a nuisance — failure to show negligence.
    A stationary engine used in the construction of a building and located about twenty-five feet inside the curb by the permission of the municipal authorities is not a nuisance, and a plaintiff whose horse has been frightened by the engine can only recover on establishing negligence in its operation.
    Mere evidence that the engine was letting off steam when the horse was frightened does not establish negligence in its operation, for the escape of steam may be caused by the exhaust which is necessary to the operation of the engine. Williams and Kruse, JJ., dissented.
    Appeal by the plaintiff, David H. Munro, from a judgment of the County Court of Onondaga county in favor of the defendant, entered in the office of the clerk' of the county of Onondaga on the 30th day of June, 1905, and also from an order of said County Court entered in said clerk’s office on the 30th day of June, 1905, reversing a judgment of the Municipal Court of the city of Syracuse in favor of the plaintiff.
    
      Charles P. Wortman, for the appellant.
    
      Ernest I. Edgcomb, for the respondent.
   Nash, J.:

We think that the Municipal Court acquired jurisdiction of the defendant, and that the practice of the court upon the trial was regular; but in the view we take of the case upon the merits, those questions need not be discussed.

The plaintiff’s counsel in his points states that the engine that frightened the horse which ran against the plaintiff’s horse and carriage was located at the curb, and extended out over the curb into the street, and in his points assumes that the engine so placed in the highway constituted a nuisance and, therefore, it is immaterial whether negligence caused or contributed to the injury. In support of the right of the plaintiff to recover we are referred to the case of Lewis v. Ballston Terminal R. R. Co. (45 App. Div. 129), where a corporation engaged in the construction of an electric railroad, having permitteda steam locomotive to stand,'without statutory, authority, upon its tracks in a narrow part of a highway, and personal injuries were sustained by the plaintiff in consequence of his horse being frightened by the escape of steam from the locomotive, sufficient to warrant a jury in finding that the corporation was" guilty of negligence, it imposed upon, the corporation the duty of establishing that the locomotive was necessarily placed in the posisition in which it was, and did not unreasonably interfere with the right of the publici

. The plaintiff here, on the trial in the Municipal Court, proved by. the testimony of Balph H. Howes, superintendent of construction bf the new court house in Syracuse* that the engine-was used in the ■ construction work; that it was located about twenty-five feet inside the curb; that permission to place the engine there was given by the commissioner of public works of the city of Syracuse.

It appearing, that the engine was placed in the position in which it was by the permission of the public authorities, and it must be. inferred necessarily employed in the construction of a public building, it was incumbent upon the plaintiff to prove that it was negligently operated. The only evidence bearing.upon the question is that of Dr, Broad, who says that Iiis- horse was frightened as he was driving by in the middle of the street by the noise of escaping steam, which was very loud; whether unnecessarily so, does not appear. It-was in. evidence that the escape of steam is caused by different things; one cause is the exhaust; that the engine could not be run without exhaust; every time a load is lifted by the derrick' operated by this kind of an engine some exhaust steam escapes, and that makes more or less noise. That cannot be helped.

We think the evidence established the fact that the engine where it was placed, under the circumstances, did not constitute a nuisance, and was insufficient to establish the fact of negligence in the operation of the engine, and, therefore, the judgment of the Municipal Court should have been reversed.

The judgment of the County Court, reversing the judgment of that court, should be affirmed.

All concurred, except Williams and Kru§e, JJ.,. who dissented.

Judgment of County Court affirmed, with costs.  