
    Sarah Young, Appellant, v. The New York, New Haven and Hartford Railroad Company, Respondent.
    Second Department,
    March 4, 1910.
    Nuisance — base ball-playing in open square — facts not raising question for jury. -s'
    Ball playing in an open square in a city is not a - nuisance per se, but may be found to be such by the jiiry in the light of surrounding circumstances.
    The plaintiff while passing á vacant tract ofland owned by the .defendant railroad Adjacent to its station in a town of 2,900 inhabitants was struck by a base ' ball batted by persons playing in the lot. The action -was brought on the theory that the defendant maintained a nuisance and was liable because it permitted persons to play ball upon its lands. There was evidence" that such games had been played for many years without injury resulting, - Evidence examined, and held, insufficient to-raise a question tor the jury. : '
    Appeal by the. plaintiff, Sarah Young, from a judgment of the Supreme Court in fSvor of the defendant, bearing date-the 7tli day of June, 1909, apd entered in the office of the clerk of fire county of Westchester- upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Westchester Trial Term.
    
      Frederick W. Sherman, for the appellant.
    
      Charles M. Sheafe, Jr., for the respondent.
   Jenks, J.:

The plaintiff seeks to recover damages for personal injuries on the theory of a nuisance. She -ivas passing in a street adjacent to land owned by the defendant whereon persons were playing ball, when a ball batted by one of the players struck her. It is not contended that the defendant maintained or promoted the ball playing or had any concern therewith, but that the defendant is liable because it permitted and did not prevent it. The learned court dismissed the plaintiff at the close of her case despite her request that the questions be submitted to the jury whether this ball playing was dangerous and, therefore, a nuisance, and whether the frequency of the ball playing in proximity to the defendant’s station and in the presence of its servants was proof of knowledge and notice thereof to the defendant, and whether the defendant took part in the maintenance of a nuisance with consequent liability for this injury. Ball playing is not a nuisance per se. (Alexander v. Tebeau, 24 Ky. Law Rep. 1305.) Was there evidence that this ball playing was attended with such a degree of danger as made it likely that it would work hurt upon a traveler in that street at the time of such playing, so that there was a question for the jury as to. whether it constituted a nuisance as to the plaintiff ? (Melker v. City of New York, 190 N. Y. 481.)

The tract of land is in the town of Harrison, which has a population of 2,900. The extent of its territory and the comparative density of its population are not before us. That, tract is an open space between 200 and 300 feet square. It lies adjacent to the railroad station of the defendant. Another side is bounded by a street - named Halsted avenue, and yet another side by a street named Harrison avenue,-which crosses the defendant’s tracks by a bridge. On one of the streets is a turnout for trolley cars. The post office is on Harrison avenue,.a little .more than half a block away. The town clerk’s office is on a corner" opposite this tract and there is a small insurance office on one of "the streets opposite this tract, but also separated from it by a level space of 20 feet. There were no other buildings on the square, save that the principal business block is situated on Harrison avenue. The tract is level and consists of “ common dirt.” .It has always been open to the public, who cross it on foot and in vehicles, and the hackmen, when waiting for passengers from the trains, have their stands there. Practically, I take it this tract is like unto the open place or waste which is often called the village green. -Ofttimes at noon, and very frequently on late summer afternoons or evenings men and boys played ball upon this land. Occasionally the ball would be thrown from one to another, but chiefly the play consisted in one player striking the ball by bat or stick into the air that one of his companions might catch it before it fell to the ground. Colloquially, ■ the sport consisted in “ knocking up fly balls.” There were no contests of sides like base ball or cricket. There is this difference between the game played and that of base ball. In tlds game the player attempts to strike the ball up into the air in the general direction of the players, who have no particular stations, so that one of the players may be able to .catch it ere it falls to the ground. In base ball the batsman aims to strike the ball within the side, lines of defined territory whereon the players are stationed at certain points, but out of the reach of his opponents and generally not tip into the air lest one of them .may catch it ere it falls. . While in base ball- the territory with reference to the right or left hand of the batsman may be defined more definitely, in this game the batsman does not strive to drive the ball out of the reach of the other players. I speak of these features in consideration of the feature of danger to outsiders. There is testimony that in the games played on this tract the ball remained in the open space about half the time, and that for the other it went out into the street. This kind of.play had been in practice' for many years almost daily, and there is no proof that there was any injury resultant therefrom save the accident in this case, save that once two windows in the insurance office were broken, and save that a witness testifies that once she “ very near ■ got hit.” Of course, such' play might, by the surrounding circumstances, present a question for the .judges of fact as to whether it was a nuisance, e. eg., in a small open space in the densely settled part of a teeming city, where there .was a procession of passersby and of vehicles in close proximity.. But under the surrounding conditions of the case at bar, I think that there was not sufficient evidence to carry that question to the jury.

The judgment is affirmed, with costs.

Present — Hirsoh'berg, P. L, Jenks, Burr, Thomas and Carr, JJ. ;

Judgment unanimously affirmed, with costs.  