
    Charles Beetz, by Peter Beetz, his Guardian ad Litem. Appellant, v. The City of Brooklyn, Respondent.
    
      Negligence—permit by a city to store building material in a street — liability to a boy injured by pouring water upon lime —- proximate cause, when it is a question of law.
    
    In an action based upon the defendant’s alleged negligence, the plaintiff’s counsel stated in his opening that in April, 1894, the defendant, a municipal corporation, issued a permit to certain builders authorizing them to use a portion of its public streets upon which to place building materials, to be used upon a building then in course of construction; that about two weeks before the accident, which resulted in the injury complained of, took place, the builders placed some barrels of quicklime on the sidewalk opposite the building; that the staves of some of these barrels had sprung apart and lime had escaped in considerable quantities upon the sidewalk, where it remained during the two weeks referred to; that upon the day of the accident, the plaintiff, who was then a boy about seven years old, was playing about the barrels with other boys, when it was suggested that they should build a house in an adjoining lot, whereupon one of the boys gathered up some of the lime and carried it to a vacant lot where the plaintiff had a tomato can containing some water, into which one of the 'boys poured some of the lime, causing an explosion which destroyed his eyes. Meld,, that the complaint was properly dismissed upon the opening;
    That the court might take judicial notice that lime was a material which was useful and essential for building purposes, and that placing it upon the street in a proper and convenient manner, for use in the construction of a building, was permissible and did not create a nuisance;
    That the placing of the lime in the street and its escaping upon the sidewalk was not the proximate cause of the accident.
    . In order that an unlawful act may be held to be the proximate cause of an injury, the injury must so directly result from such act, that, according to common experience and the usual course of events, the injury might, under the particular circumstances, have reasonably been expected, and if the result is of such a character that reasonable prudence and foresight would not have forecast its happening as a consequence of the act, it may not be considered as a proximate cause.
    The question of proximate cause is ordinarily one of fact for the jury, but, where the facts present a clear case, the question is to be disposed of by the court as one of law. x
    Appeal by the plaintiff, Charles Beetz, by Peter Beetz, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of April, 1896, upon the dismissal of the complaint upon the plaintiff’s opening statement of the case, rendered by direction of the court on a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of Kings.
    The action was brought to recover the damages resulting from personal injuries caused by the alleged negligence of the defendant.
    
      Albert E. Lamb, for the appellant.
    
      Alexander H. Van Cott, for the respondent.
   Hatch, J.:

The opening statement made by plaintiff’s counsel to the jury in substance disclosed that, in April, 1894, the city of Brooklyn had issued to certain builders a permit to use a portion of the public streets of said city, at the corner of Stanhope and "Wyckoff streets, for placing building material thereon, to be used in the construction of a building then in process of erection. That about two weeks prior to May 5, 1894, twelve or fifteen barrels of quicklime were placed upon the sidewalk, opposite the building in process of erection, and about sixty feet from the corner of the aforesaid streets, where they were permitted to remain until after said May fifth. Some of the staves of the barrels had sprung apart, allowing the lime to escape upon the sidewalk in considerable quantities, where it remained exposed during the aforementioned period. The plaintiff was then a boy about seven years of age, living with his parents upon Stanhope street. The lime stood upon the street in front of a vacant lot. On the afternoon of the said fifth of May, plaintiff, in company with some other boys of about his own age, was playing about the barrels, when it was suggested that they should build a house in the adjoining lot. One of the boys gathered up a quantity of lime and carried it upon the vacant lot where plaintiff was; the latter had a tomato can containing some water, and one of the boys poured some of the lime into the can, which, coming in contact with the water, blew up into plaintiff’s face and destroyed his eyes. The opening is in substantial accord with the allegations of the complaint, the only substantial difference being that the complaint alleges that the lime was blown in plaintiff’s eyes at the corner of thé streets, and, by inference, without the agency of any intervening cause except the wind. Upon the argument, however, it was not claimed that any allegation of the complaint changed or modified the questions presented upon the opening.

We are of opinion that the judgment dismissing plaintiff’s complaint was right, and that no liability attached to the defendant upon the facts as disclosed by the opening. It is a well-settled general proposition of law that a party is only liable for the natural and probable consequences of his wrongful act or omission. And while difficulty frequently arises upon the application of this rule of law to particular cases, yet, where it appears that the consequences which flow from the particular act are remote and speculative, no liability attaches. Usually the question of proximate cause is one of fact for the jury to answer. But where the facts present a clear case, the question is to be disposed of as one of law by the court. And the law requires that the injury must so directly result from the wrongful act that, according to common experience and the usual course of events, it might, under the particular circumstances, have reasonably been expected.” (Jex v. Straus, 122 N. Y. 293.)

If the result is of such a character that reasonable prudence and foresight would not forecast its happening as a consequence of the act, then it may not be considered as a proximate cause. (Ryan v. N. Y. C. R. R. Co., 35 N. Y. 210; Webb v. R., W. & O. R. R. Co., 49 id. 420; Read v. Nichols, 118 id. 224; Milwaukee, etc., Ry. Co. v. Kellogg, 94 U. S. 469; Hoag v. L. S., etc., R. R. Co., 18 Am. Law Reg. [N. S.] 214.)

■ The parties who placed the lime in the street had the authority of the defendant for what they did. It was not claimed in the complaint or opening by counsel that the lime was per se a nuisance. Upon the argument, it was claimed that it was a dangerous substance, and, as it was allowed to escape, was a nuisance. It was building material in common use, and we may take notice that it is an essential and necessary article for such purpose. When placed in the street in a convenient and proper manner for use in the construction of a building, it is permissible and is not a nuisance. ( Vanderpool v. Husson, 28 Barb. 196; 1 Wood on Nuisance [3d ed.], § 256.)

There is nothing which apj>ears in the case having a tendency to establish that the lime, if left alone in the street as it was placed,' would have inflicted injury upon any person, or that it would he likely to be so blown about as to inflict damage. Could the defendant, in reasonable contemplation, have supposed that children would carry this lime from the street to this vacant lot and there attempt to make use of it in the manner described? We think to ask the question is to answer it. The lime was harmless as it lay upon the street; it was only made dangerous by the active intervention of two other agencies, the boy who carried it and its contact with water. It does not appear that there was any water near it or anything connected with it, except the use to which it was commonly put, that would suggest to any one that it could be carried away and mixed in this vacant lot. It is suggested that it Avas as dangerous as exposed gunpowder, and constituted a nuisance. We are not able to accept this view. It is as commonly in the streets for building purposes as is building stone; is placed therein and used therein daily without danger or serious inconvenience to the general public using the streets. It will probably be found impossible to cite a case Avhere injury has arisen in a manner similar to that in the one now before us, and to hold the defendant liable in damages upon these facts would, we think, establish a rule of liability beyond that of any adjudged case, and would impose a rule of practical indemnity for injuries from accidents with which the city was in any wise connected. The cases relied upon by plaintiff to sustain his appeal are cases where the danger was within the reasonable contemplation of the city, and the condition a proximate cause of the resultant injury. Such is not the case here.

The judgment should he affirmed, Avith costs.

All concurred.

Judgment unanimously affirmed, with costs.  