
    Jane Wells, Appellant, v. The City of Brooklyn, Respondent.
    
      Municipal corporation—a show case maintained upon the street constitutes a public nuisance — injury resulting from an accident to it — liability far a 'neglect to remove it.
    
    In an action brought against the city of Brooklyn to recover damages for personal injuries caused by its alleged negligence, it appeared that, while the plaintiff was lawfully upon one of the defendant’s streets, a show case, which had for several years stood upon the curb line of such street, was blown down by the wind, causing the injuries complained of. The show case, for the maintenance of which upon the street no permission had heen given by the municipal authorities, had originally been fastened by means of an iron brace to an awning post, but the day before the accident in question,- the case was knocked over by a collision with a truck and the brace was torn off, and, although the case was put back in position, it was not fastened to the post in any manner.
    Upon the trial, the court held that the city was not liable unless its officials, in the exercise of ordinary prudence, ought reasonably to have anticipated that such an incumbrance was likely to be loosened by contact with vehicles and thus become dangerous.
    
      Meld, that this ruling was erroneous; that the show case being permanent in character, continuously maintained and unauthorized, constituted a public nuisance, which it was the duty of the defendant to remove as soon as knowledge of its existence could fairly be attributed to it;
    That as any unauthorized obstruction in a public highway might prove, dangerous to travelers, notice to -the municipality of its existence was notice that the safety of public travel was liable to be endangered, and that if the municipality . failed to remove it, and injury ensued therefrom, the presence of the obstruction was to be deemed the proximate cause of the injury;
    That the city was liable for the injury in question, although sufficient time had not elapsed, between the collision which loosened the show case and the accident, to charge it with notice that the case was unfastened.
    Appeal by the plaintiff, Jane Wells, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 10th day of March, 1896; upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said cleric’s office on the 5th day of March, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      James D. Bell, for the appellant.
    
      William G. Cooke, for the respondent.
   Willard Bartlett, J.:

The plaintiff, a married woman, then seventy years of age, was severely and permanently injured on the'13tli day of December, 1894, while lawfully upon Grand street, in the city of Brooklyn, by the fall of- a large show case of wood and glass, which had stood near the curb line of the sidewalk in front of the premises No.- 691 Grand street for several years prior to the time of the accident.

■ There was an awning post, near this show case, to which it had been fastened by means of an iron brace. On December 12, 1894, a truck collided with the show case, knocking it over and tearing off the brace, ) The show case was put back in position, but without fastening it. to the post by the. brace- or otherwise. The -next day the case was blown down by the wind' and the plaintiff was hurt.

The show case had been maintained in the same place- upon Grahd ■street for six or seven, years before the accident occurred. No permission for the maintenance of the structure had been given by the municipal authorities.. ■

. Upon the trial the court held that the city was not liable unless its -.officials, in the exercise of ordinary prudence, ought reasonably ■ to have anticipated that such an incumbrance was likely to be loosened by; contact with vehicles and thus become dangerous. The plaintiff excepted to that portion of the charge in which the jury were so instructed. There was a verdict for the defendant, and the plaintiff has. appealed.

It is clear that the show case, even when fastened by the iron brace to the; awning post, was an unlawful obstruction in the street) which it was the duty of the defendant to remove. It was permanent in character and continuously maintained, and béing wholly unauthorized it constituted a public nuisance. “Any permanent or habitual obstruction in a public street or highway,” said Denjo, Ch. J., in Davis v. Mayor of New York (14 N. Y. 506, 524), “ is an indictable nuisance, although., there be ""room enough left for carriages to pass; and it is not less so, though the thing which consti-' tutes the obstruction is not fixed to the ground, but is capable of being and' actually is removed from place to place in the street.” The city did not create -the nuisance, but it failed to take any steps to -ábate it, although the duty to remove the obstruction arose, in the absence of any proof of • actual notice to the authorities, as soon ■as notice of the existence could fairly be presumed from the lapse of time. Here the obstruction had existed, as already stated, for upwards of six years.

But it is said that the show case was not - dangerous so long as it remained fastened, and that unless the municipal authorities ought to have foreseen, as reasonable men, that there was a probability of its becoming unfastened, as it did, there could be no liability on the part of the city. The learned trial judge adopted this view and tried the case accordingly, holding that inasmuch as the accident could not have happened if the brace which held the show case had not been broken by the collision with the truck, the accident could not be attributable to the neglect of the city, unless the city officials in the exercise of reasonable prudence ought to have deemed the' presence of the securely-fastened show case dangerous, because likely to result in such a mishap as that which actually occurred.

Time enough had not elapsed between the collision which loosened, the show case and the injury to the plaintiff to impute notice to the municipal authorities that it was no longer secured. It is plain, therefore, if the city is liable at ¿11, that its liability arises out of the fact that it permitted the existence of an obstruction in the highway amounting to a nuisance, which; by reason of the act of another person lawfully using the highway, was rendered dangerous to the plaintiff, and inflicted upon her the injuries of which she ■complains. The contention in behalf of the defendant is that an ■essential element of such liability is that the obstruction shall be actually dangerous in. the first instance or manifestly likely- thereafter to become so, in the judgment of prudent men, and that if originally it be neither, the fact that it subsequently develops into a menace to public travel does not render the municipality chargeable with negligence for the resulting injury. I think this is too limited a view of the rule of law applicable to such a case, both upon reason and authority.

When a municipality tolerates for years the continuance of an unlawful obstruction in a public street which it is in duty bound to remove therefrom, its action is distinctly wrongful. It must bear the natural consequences of that wrongful action. Any unlawful •obstruction in a public highway may prove dangerous to travelers, either from the manner in which it is originally erected, or by reason of accidental or other interference with it by strangers to its erec-tion. Notice to the municipality, therefore, of' its presence is notice that the safety of public travel is endangered or liable to be endangered. If, under such circumstances, the obstruction is allowed to remain the municipality takes the risk. If injury ensues, the presence of the obstruction is to be deemed the proximate cause thereof, for the injury could not have happened if the municipal authorities had performed their duty. In that event,, in the case at bar, the show case would not have been on Grand street at all, and could . not have been loosened by the collision with the truck, or fallen upon the plaintiff.

In Cohen v. Mayor, eta., of New York (113 N. Y. 532) the plaintiff’s decedent was killed on Attorney street in New York city, by the fall of the thills of a grocery wagon which was stored in the-street under a permit issued by the city government. The thills had been tied up perpendicularly with a string which broke in consequence of a collision with an ice wagon which was being driven along the street just as the injured man was passing. The trial court directed a verdict for the defendant, on the ground that the cause of the injury was the defective manner in which the thills were tied up, of which there was no evidence that the city had notice. In reversing the judgment, the Court of Appeals, speaking-by Peckham, J., said: “ But assuming that the city had no right to issue the permit, it is urged that such license did not authorize the negligence which caused Cohen’s death, and that the act of the defendant was too remote to be regarded as the'proximate cause of the damage herein. We do not think so. The act of the defendant was wrongful; it consisted in setting up an obstruction in the public highway, and the accident happened because of the presence of the obstruction at the point in' question. It was there by the act of the defendant, and being there it has caused the injury. To be sure -it may be said that if the thills had not been negligently tied, they would not have fallen. But that was simply the way in which, by reason of the presence of the obstruction, the accident occurred. There is always reasonable ground for apprehending accidents from obstructions in a public highway, and any person who wrongfully places them there or aids in so doing, must be held responsible for such accidents as occur by reason of their presence. The obstruction in such case must be regarded, within the meaning of the law on the subject, as the proximate cause of the damage.”

I cannot see any difference in principle between the Cohen case and this case. In Ring v. City of Cohoes (77 N. Y. 83) the obstruction'of which the plaintiff complained was a heap of ashes which narrowed the roadway about one-tliird. This was certainly not any more essentially dhngerous than was the show case here, or more likely to become so; yet the court held that if the city carelessly permitted the, heap to remain there, obstructing to some extent the roadway, it would be responsible for any accidents caused thereby! (See, also, Rehberg v. Mayor, etc., of City of New York, 91 N. Y. 137, 144, 145.)

While undoubtedly there are cases which have imposed a severe and stringent liability upon municipal corporations in respect to the care of the streets under their charge — notably some of those relating to the accumulation of snow and ice — I do not think any-just complaint can be made' óf a rule which simply enforces upon: such corporations the duty of preventing the artificial erection and maintenance of illegal obstructions in the highway, and makes them liable for personal injuries which would not be' suffered if those obstructions were not negligently permitted to occupy the street; Such a rule is essential -to- the adequate protection of the public,- and calls upon the officers of the municipality for the exercise of nothing more than reasonable diligence on their part to keep the streets safe. ‘ . .

In my opinion the judgment should be reversed, and there should be a new trial.

.All concurred.

' Judgment and order reversed and new trial granted, costs to: abide the event.  