
    John Frank, Respondent, v. The Village of Warsaw, Appellant.
    Fourth Department,
    December 28, 1906.
    Municipal corporation — when peanut roaster maintained in streets not a nuisance—■ responsibility of village for safety of streets —liability for injury to pedestrian from explosion of peanut roaster.
    A peanut roaster mounted upon wheels and stationed during the day on a platform in the space between the sidewalk and the paved gutter of a village street in such a position that it does not obstruct public travel either upon the sidewalk or the roadway, in charge of an attendant who could move it if necessity arose, is not a nuisance although it has been so maintained with the knowledge of the village trustees for over two months.
    There is no absolute guaranty upon the part of a municipal corporation that its streets shall at all times be in a safe and proper condition. Its obligation extends only to the exercise of reasonable care and vigilance and there must he willful misconduct or culpable neglect to create liability.
    Hence, in an action against a village to recover for personal injuries received from the explosion of such a peanut roaster it is error for the court to hold as matter of law that its maintenance was a public nuisance for which the village was liable. It was incumbent upon the plaintiff to show that'there was reasonable ground for apprehension that an explosion would occur in the ordinary use of the machine, or if the happening of the explosion alone raised a presumption of negligence, evidence that such machines were in common usé in the streets of other'villages and that the defendant’s trustees had never heard of one of them exploding, offered in rebuttal of such presumption, should have been received.
    Spring and Williams, JJ., dissented, with opinion.
    Appeal by the defendant, The Village of Warsaw, from a judgment of the, Supreme Court in favor of the plaintiff,-entered in the office of the clerk of the county of Wyoming 'on the 7th day of March, 1906, upon the verdict of a jury for $7,500, and also from an order ^entered in said clerk’s office on the 9tli day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    The plaintiff, a young man of twenty-eight years of age, was injured on the 16th - day of August, 1904, while walking along the sidewalk on the east side of Main street in the village of Warsaw, in the county of Wyoming, by the explosion of a patent peanut roaster standing on a platform in the street, causing pieces of glass tQ be thrown violently in his face and eyes, destroying his sight.
    
      The trial judge held, as matter of law, that the peanut roaster was an unlawful obstruction in the street, and that the defendant was liable, and submitted only the question of damages to the JUI7-
    
      Elmer E. Charles, for the appellant.
    
      Eugene M. Bartlett, for the respondent.
   Nash, J.:

The village of Warsaw is an incorporated village containing 3,300 inhabitants. Main street, its principal street, is six rods wide. In 1904 one Coloross owned a brick store of two stories with twenty feet frontage on the east side of that street, where he sold fruit, candies, nuts and popcorn. The front of the store contained plate glass windows. The sidewalk in front was ten feet seven inches in width and covered with a wooden awning supported by two columns resting on stone foundátíons at the outer edge of the walk. - ■

Coloross constructed the platform between these pillars' flush with the sidewalk and four feet wide, and on this located his peanut roasting machine and popcorn heater. The machine was mounted on wheels; those in front being two feet, and those in the rear two and one-half feet in diameter. The wagon was five feet in length and two in width. The popcorn case was two feet square and twenty-six inches in height. It was operated by steam generated by means of gasoline in a burner under the boiler, which held about three gallons of water with an automatic, feeder. There was a canvass top to the wagon and a tongue-was attached tó it so it could be moved readily. Its entire weight was about 450 pounds.

Coloross purchased this machine May 2, 1904, and used it daily up to the time of the explosion. The machine was placed on the platform every morning about seven o’clock and taken into the store in the evening about ten o’clock. Water was put into the boiler nearly every morning, and about a gallon of gasoline was consumed daily in its operation. It was in place every business day, but not constantly operated ; if a supply of the peanuts and popcorn was on hand steam enough was kept up to heat them. There W a steam wlflstlp on th§ tpapipiie which wa§ sounded occasionally as sort of an advertisement of the business and of the contrivance: > the noise could be heard for two or three blocks.

The trustees of the village knew that this roasting machine was in the street on the platform in front of the store from day to-day and that it was in operation. They passed the store occasionally, were the customers of Ooloross more or less, were about the streets often, and that this machine was operated by-steam and was for roasting jieanuts was apparent to any one who saw it.

The peanut roaster was not an obstruction to public travel either upon the sidewalk or in" the street. The platform on which it stood was laid over a brick pavement which sloped from the sidewalk to the gutter. It occupied the space between the sidewalk and the paved gutter, no part of the machine was in the street or liable to be hit or touched by passing vehicles. In this respect it differs entirely in character from the obstructions found in the authorities relied upon to support the plaintiff’s contention. In the Wells case, most relied upon (Wells v. City of Brooklyn, 9 App. Div. 61), a large showcase of wood and -glass had for several years stood upon the curb line of the street, originally fastened by means of an iron brace to an awning post. The day before the accident- the case was knocked over by a collision with a truck and torn from its fastening. It Was put back in position but not fastened to the post in-any manner. The next day the case was blown down by't-he wind and the plaintiff was hurt. The city was held liable upon the ground that the showcase being permanent in character, continuously maintained and unauthorized, constituted a public nuisance, which it was the duty of the city to remove as soon as knowledge of its existence could fairly be attributed to it; that the officials of the city, 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. Ho sinch condition could have arisen from the presence of the Ooloross machine in the place where it stood. It was not on the sidewalk or in the street where vehicles or pedestrians were liable to come in contact with it. It was movable, not a fixture; with an attendant in charge through the day who could move it if in the way at any time,, and at night it was taken into the store. Eliminate the explosive character of the machine from the case, "and the idea of its "being an obstruction, dangerous to the public travel, and, therefore, a nuisance, is absent, and no negligence could properly be imputed to the defendant for permitting its use by Coloross in his business. It was no more an obstruction, dangerous to public travel, than the posts which supported the awning over the walk in front of his store. An encroachment upon the street, which does not interfere with public travel, is not a nuisance per se. (Bieling v. City of Brooklyn, 120 N. Y. 98; Hume v. Mayor, 74 id. 264; Leary v. City of Yonkers, 95 App. Div. 126.) In, the latter case an overhanging business sign, which had become unsafe, fell and injured the plaintiff while passing upon the sidewalk. It was held that the measure of the city’s liability in respect to such sign was the exercise of reasonable care; that the city was not liable unless its servants in the ordinary discharge of their duties should have discovered that the sign had become unsafe. The two former were awning cases, in which it was held that reasonable diligence only was required on the part of the city to see that wooden awnings were kept in a safe condition.

Upon the question of the defendant’^ liability in this case, Hunt v. Mayor (109 N. Y. 134) seems to be directly in point.

The general rule there laid down regarding the liability of municipal corporations for injuries occasioned by, obstructions in the streets, deduced from the case, is stated in the syllabus as follows :

“ There is no absolute guaranty or undertaking on the part of a municipal corporation that its streets or other constructions shall at all times and under all circumstances be in a safe and próp.er condition. Its obligation and duty extend only to the exercise of reasonable care and vigilance, and to create liability, willful misconduct or culpable neglect must be established.

“ The mere existence of a defect, rendering a street unsafe, from which a traveler sustains an injury, where the defect was not created by the act or consent of the municipality, does not, independent. of negligence, establish a culpable breach of duty on its part.”.

The action was brought to recover damages for injuries received by plaintiff on the 27th day of January, 1883, while lawfully passing along Broadway, in the city of New York, by an explosion at one of the manholes of the American Heating and Power Company, at the junction of Broadway and Maiden lane.

The heating and power company had the consent of the city to use the street for steam pipes, but the city was empowered to prescribe proper regulations and conditions for the use of the streets for that purpose, and for an omission to prescribe proper regulations or exercise proper supervision over the work the city was liable .for accidents attributable to such omission. It was insisted that the omission of the city to prescribe the manner of • laying the steam pipes or to take any measures to guard against an explosion was an omission of duty which rendered it liable. The evidence tended to show that there was no reasonable ground for apprehending any danger from the' proximity of the steam pipes to the gas pipes, which was the cause of the explosion. It was held that under such circumstances the omission of the city to make a regulation prescribing the manner in which the steam pipes should be laid furnished no evidence of négligence.

The language of the court in reaching its decision, by Andrews, J., is as follows: t£ The fact of the explosion is itself a demonstration that the street was at the time in an unsafe and' dangerous condition, and the only question is whether upon the evidence, the city is or may be liable for the injury suffered by the plaintiff. The duty-cast upon a municipal corporation to keep its streets in a safe condition for travel is not absolute, so as to impose liability upon the corporation in every case where a traveler, without fault on his part, sustains injury from a defective street. . Its liability depends, in all cases upon negligence, that is, upon the fact whether it has omitted to exercise due care, under the circumstances, in their maintenance or reparation. The mere existence of a defect from which a travelér sustains injury does not, independently of negligence,- establish a culpable breach of duty on the part of a municipality. The cases of injuries from obstructions placed in streets by third persons without the consent of the municipality, of which it has no -notice, are illustrations of the principle, that the liability of a municipality for the unsafe condition of its streets rests upon the basis of negligence, and not upon an obligation assumed or imposed bylaw to keep the streets at all times and at all hazards in an absolutely safe condition for travel. Where an injury happens from the defect of a roadway itself, or from a dangerous condition of the street created by the act or consent of the municipality, negligence, as ip the other cases mentioned, is the ground of liability. In the one class of cases the conclusion of negligence may be reached more easily than in the other, but the principle upon which the liability depends is the samé in both, notwithstanding the difference in the circumstances. Where the defect is known, rendering the street unsafe and dangerous, the municipality is bound to be prpmpt and vigilant in remedying it. It is at all times bound to exercise due care that the streets are safe and' free from ■ dangerous defects, and that they shall not become unsafe or dangerous. To this extent its duty is absolute. The language of the cases expressing the measure of duty resting upon a municipal corporation in respect to its streets, sewers, etc., has not always been carefully guarded, but the doctrine has been frequently reiterated in this court that there is no absolute guaranty or undertaking on the part of a municipal corporation that its streets or other constructions shall at all times and under all circumstances be in a safe and proper condition, and that its obligation and duty extend only to the exercise of reasonable care and vigilance. (McCarthy v. City of Syracuse, 46 N. Y. 194; Smith v. Mayor, etc., 66 id. 295; Ring v. City of Cohoes, 77 id. 83; Hubbell v. City of Yonkers, 104 id. 434.) There must be willful misconduct or culpable neglect to create liability.

“ It follows that negligence on the part of the city was an essential element of the plaintiff’s case, and it was incumbent upon him to establish it, or to give evidence from which it could be inferred, before he was entitled to have the question submitted to the jury.”

Within the rule thus laid down it was incumbent upon the plaintiff here to prove that there was reasonable ground for apprehension that an explosion would occur in the ordinary use of the machine, and injury therefrom result to passers-by on the sidewalk or in the street. If the plaintiff was entitled to a presumption of negligence, arising from the happening of the explosion, evidence that .machines of this kind were in common use in the streets of other cities and villages, and the defendant’s trustees had never heard of one of them exploding, offered by the defendant to rebut the presumption, should have been received. '

It was error, therefore, for the court to hold as matter of law that the maintenance of the peanut roaster by Coloross constituted a public nuisance, 'and that the defendant was liable,, submitting-only the question of damages to the jury.

- The judgment should be'reversed.

McLennan, P., J., concurred'; Kruse, J., concurred,, in an opinion ; Spring, J., dissented, in an opinion, in which Williams, J., concurred. ,

Kruse, J. (concurring):

I concur in the' opinion of Mr. Justice Mash that questions of fact Were presented by the evidence in this case whiob should have been" submitted to the jury,, and that the trial court errbd in holding as a matter of law that the defendant was liable for the injuries sustained by the plaintiff resulting from the explosion of the boiler used in connection with the peanut roaster. The mere fact that the village trustees knew that the owner of the peanut roaster was in the habit of placing his machine within the bound's of .the street and operating it there was not sufficiént to warrant the court in-holding as a matter of law that the village "through its proper officers authorised or'licensed* the owner of the roaster so. to place and operate it in the street, nor conclusively to. establish that the" village maintained a nuisance or authorized its, maintenance. "

It was the duty of the village to úse reasonable care, prudence and foresight to keep the street free from conditions endangering" the safety of the traveling public.- . And, whether the village-failed, in its duty in that regard, in omitting to. prevent the peanut roaster being placed and operated in the street, or in seeing that it was removed after it was placed there, was, I think, -a question of fact for a jury.

In determining that question it was. proper for the jury to. consider any fact or circumstance tending to show that the village: authorities could reasonably have apprehended the danger to persons in the street of placing and operating the roaster as it was placed and Operated, togethér with.the knowledge the. proper officers of the village had, or ought to have had thereof, in the proper discharge of their duty. ' • ■

Spring, J. (dissenting):

The plaintiff was lawfully on the sidewalk' and "he had the right to assume that it was safe for him to pass .over it. This assurance of safety existed because the defendant was charged with the affirma. tive obligation to keep the street in its entirety open for public travel. (Cohen v. Mayor, 113 N. Y. 532, 535 ; Callanan v. Gilman, 107 id. 360.)

These are fundamental propositions. It has bécome also one of the settled propositions in this State that a permanent obstruction in a stréet or highway interfering with the convenience of the public or imperiling the safety of the traveler is an unlawful obstruction' • and within the definition of a public nuisance. (Davis v. Mayor, 14 N. Y. 506, 524; Hume v. Mayor, 74, id. 264, 270 ; Landau v. City of New York, 180 id. 48.

The rule, which has ever since been adhered to, was thus succinctly announced by Chief Judge Demo in Davis v. Mayor (14 N. Y. supra, 524): “ Any permanent or habitual obstruction in a public street or highway is an indictable nuisance, although there be room enough left for carriages to pass, and it is not less so though the thing which constitutes the obstruction is not fixed to the ground, but is capable of being and actually is removed from place to place in the street.” And the municipality whose agents license or acquiesce in the appropriation of the street or highway for an unlawful use, or in putting an obstruction therein amounting to a nuisance, or fails, after notice of such obstruction, to remove the - same, is responsible in damages to a traveler injured in consequence of such appropriation of the street. (Cohen v. Mayor, 113 N. Y. 532, supra; Wells v. City of Brooklyn, 9 App. Div. 61; Rehberg v. Mayor, 91 N. Y. 137.)

In Cohen v. Mayor (supra) the evidence showed that a grocery wagon was standing in front of a store on a street in the city of Hew , York. The thills were held in an upright position by a string, and the wagon had remained in this place and in this condition for several months when not in use by its owner. The street was narrow, and an ice wagon passing along it collided with the grocer’s wagon, causing the thills to drop and strike the plaintiff, who was on the sidewalk in front of the store. The plaintiff sued the city, charging it with maintaining an unlawful obstruction in the street. The municipal authorities had given-a permit to the owner of the wagon to leave it in the street, with the thills tied up, receiving therefor two dollars. The trial court directed a verdict for the defendant, which was affirmed by the General Term (43 Hun, 345), but reversed by the Court of Appeals. The court said : “ The storing of the.wagon in the highway was a nuisance. The primary use of a highway is for the purpose of permitting the passing and repassing of the public, and it is entitled to the unobstructed and uninterrupted use of the entire width of the highway for that purpose. * * * It is no answer the charge of nuisance that, even with the obstruction in the highway, there is still room for two or more wagons to pass,, nor that the obstruction itself is not a fixture. .If it be permanently, or even habitually in the highway, it is a nuisance. The highway may be a convenient place for the owner of carriages to keep them in, but the law, looking to the convenience of the greater number, prohibits any such use of the public streets.” And the city was held liable because it had “ assumed to authorize the erection and continuance of a public nuisance.”

I realize that these cases are not identical with the one we are considering. We cite them for the purpose of showing the prevailing trend of the courts in holding that the street to its full extent is for the public; that any obstruction impeding travel or endangering the safety of the traveler is a nuisance; and that the city permitting such obstruction is chargeable with maintaining a public nuisance. . .

But Wells v. City of Brooklyn (supra) is an authority more akin to the present one. The obstruction in the street there involved was a showcase close to the- curb line and which for years had been fastened by a brace to an awning, A truck ran against the case severing it from the brace, The next day the case was blown upon the plaintiff, who was upon the sidewalk, seriously injuring her and she sued the municipality.

The trial court in charging the jury said the city was not liable unless the officials of the city ought reasonably to have anticipated that the showcase was likely to be overturned by a passing vehicle, and thus become dangerous; and the jury rendered a verdict for - the defendant, and the judgment was reversed on appeal on the . ground that this instruction was erroneous. .The court held that the showcase when fastened to "the awning “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 being wholly unauthorized, it constituted a public nuisance.” "

The court distinctly repudiated the rule adopted by the trial judge already mentioned, and added: “ Time enough had not elapsed between the collision which loosened the showcase 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 all, 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. * * * 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 erection. 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.”

An appeal was taken to the Court of Appeals but the appeal was dismissed on the ground that the form of the order did not enable that court to- review it. (158 N. Y. 699.) Upon a retrial the court directed a verdict for the plaintiff, except as to the amount of damages, which were assessed by the jury at $10,000, and the judgment was affirmed by the Appellate Division. (45 App. Div. 623. See, also, Leary v. City of Yonkers, 95 id. 126, 130.)

The peanut roaster had been in the street from May second to August sixteenth, the day of the accident. It was in a conspicuous, part of the village, readily visible to every passer-by, and its presence during all that time was known to the trustees and the village officials. It. was far more of an obstruction and fraught with greater tendency to do injury to people upon the sidewalk than the showcase fastened to the awning. The liability of an explosion from an engine and boiler forming-a part'of a portable machine is always present and may be anticipated at any time. It was an 'unusual coincidence of events that tore the showcase from its moorings and subsequently, by the action of the wind, threw itrupon the plaintiff, and which constituted the liability in the Wells- case. But in each case the thing in the street was in and of itself a nuisance, and, for that reason, the municipality was responsible for the injuries inflicted by it. / .

It does not seem to inc that Hunt v. Mayor (109 N. Y. 134), discussed in one of tlie prevailing opinions, is decisive of this case. .A steam heating company, pursuant to legislative authority and the ordinance of the common council, had laid mains and pipes under the streets for the transmission of water and steam. A gas main was already in the street and the two lines crossed at. the junction of two streets where a manhole was made by the heating and power 'company of bricks and cement with two iron covers. When the steam was let in the pipes the ground became very warm and the lead in the gas pipes softened, causing them to leak. An explosion occurred at the manhole and the plaintiff, who was .passing-along the street, was injured. The explosion apparently occurred from the accumulation of illuminating gas in the manhole, which, in some way, became ignited.

The heating company was authorized to use the streets, but it was claimed the city should have determined the manner in which the mains should be laid and placed with reference to the gas line. There was no proof that they were laid or located improperly, or that they'could have been placed in any different way from the plan adopted, “ or that a manhole was not a proper arrangement, or that there was any lack of care in conducting the work.”.

The project was a new one, and the accident which occurred, the court said, could not have been apprehended. The municipality was charged with negligence, but the proof did not substantiate .the charge. It affirmatively established the contrary. The court added So far as appears, all the precautions which at' the time seemed to be necessary were taken to make, the work safe and secure.”

Even if the trustees of the .defendant did not know the machine was dangerous they should have removed it, for it was an obstrue. tian upon the street. As was. said in Rehberg v. Mayor (91 N. Y. 137, 144): “ If the city omitted to act with reasonable diligence after notice of an unlawful obstruction in the street,- which might occasion injury to persons lawfully thérein, we think it would be no defense that it may not have known that the obstruction was in fact dangerous. The duty rested upon'the city to remove the incumbrance; and if the incumbrance was dangerous in fact and resulted in injury to the plaintiff, the city is, we think, responsible, although it had not by actual examination and inspection ascertained its dangerous character.”

Several of the- cases charging municipalities with responsibility for damages incurred by reason of obstructions in the street arose where the authorities by some affirmative act had licensed or permitted the obstruction, notably in Cohen v. Mayor (113 N. Y. 532, supra) and Landau v. City of New York (180 id. 48, supra), and the counsel for the appellant endeavors to make that fact potential-in distinguishing them from the present case.

He correctly states that. the trustees of the defendant never granted the privilege to Coloross to place his engine and boiler in the street. The' streets of a village “ are under the exclusive control and supervision of the board of trustees ” (Village Law [Laws 1897, chap. 414], § 141; Nelson v. Village of Canisteo, 100 N. Y. 89), and they are charged with the affirmative duty of keeping them reasonably safe. (Pettengill v. City of Yonkers, 116 N. Y. 558 ; Leary v. City of Yonkers, 95 App. Div. 126, 129.)

This is no negative burden. If so, the municipal authorities by shirking their duties by inaction might always shelter the municipality from responsibility. If that rule were to obtain, shiftless inert trustees wo'uld be preferable to the vigilant and capable. The principle adhered to by the counsel prevails where the municipal authorities in their discretion have not passed an ordinance relative to the use of the streets, as in Howard v. City of Brooklyn (30 App. Div. 217), or have not invaded the premises of an. individual to abate a nuisance as in Leonard v. City of Hornellsville (41 id. 106).

The enactment of an ordinance pertains to the legislative function of. the trustees requiring discretion, and the erroneous exercise of judgment or the omission to exercise it at all in that regard may not cast legal blame upon the municipality if damages accrue.

But where there is an obvious persistent encroachment upon the ' street which is a public nuisance per se, either impeding the use of the Street to some extent or imperiling the travelers upon it, the trustees may not ignore it' and by failing to act at all shield the ■municipality from responsibility. As was said in Ehrgott v. Mayor (96 N. Y. 273 ) : “ The city must act through officers, and agents, and it is for*the Legislature to determine what powers and duties shall be devolved upon them. It matters not how ample or exclusive their powers may be, nor how independently they .may act nor how they- are chosen. If. they are provided by law and authorized to discharge a corporate duty which rests upon- the municipality, then in the discharge of that duty they represent the municipality and it may be chargeable with their misfeasance and nonfeasance.”

The removal of a nuisance in a street is a ministerial act, instead of the kind denominated as governmental. If a threshing machine in full blast is kept running for a week on Main street in the city of Bochester or is stored there night after night and a traveler is injured by colliding with it at night or by reason of his team running away through fright, the city cannot avoid liability on the ground that no duty was imposed upon its officials to remove it. They would not be expected to grope through the provisions, of the city charter to ascertain whether it contained a section permitting the removal of the nuisance, nor would they be called upon to enact an ordinance before getting rid of the illegal obstruction.

The trustees had no authority to grant a license to Ooloross to place this peanut roaster in the street. They would not be expected to transcend their authority. If they knew of it and acquiesced in it and failed to remove it, the village is liable. T'o hold that the municipality is not- responsible'because the trustees did not by ordinance or license give Coloross permission to cumber the street unlawfully with this machine, but did tolerate and assent to it, is too narrow a rule of liability for a municipality. That doctrine . would invite laxity in the improper use of the streets.

The court, as in the Wells case, determined as matter of . law that the peanut roaster in the street was a nuisance and that the defendant was liable in permitting it to remain there. Ordinarily the’ jury are permitted to decide those questions, but the evidence, without dispute, showed that this machine was in the main street in daily operation for more than three months. Its general character was apparent. The most casual observer would notice that it contained an engine and boiler. The president and the- trustees of the village, and its street commissioner knew of its location and operatian. Manifestly it was an illegal obstruction.

Whether the trustees had reason to foresee that it would explode or that it was e' inherently dangerous ” was unimportant if the thing was a nuisance. Three months’ knowledge of its use assuredly was adequate to give the trustees ample opportunity to comprehend the character of the obstruction and to cause its withdrawal from the street.

■ The injuries to the plaintiff were within the rule of proximate cause. (Cohen v. Mayor, 113 N. Y. 532, supra; Murphy v. Leggett, 164 id. 121, 126; Wells v. City of Brooklyn, 9 App. Div. 62, supra.)

The machine, the nuisance, in its. ordinary operation exploded and did the injuries. A person was required to supply the water and gasoline and to keep the machine going, but his act in either furnishing these supplies or in omitting to furnish them properly is not the intervening cause which relieves the defendant.

The defendant endeavored td show that similar machines had been in use in other villages and cities, but the evidence was excluded. We think the ruling correct. Possibly, if the charge were negligence, that class of proof might be competent, but where the municipality is maintaining a nuisance, the fact that other villages are committing the like offense is no defense. (21 Am. & Eng. Ency. of Law [2d ed.], 690.)

The judgment and order should be affirmed, with costs.

Williams, J., concurred.'

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law and fact.  