Wenzler v. McCotter , 29 N.Y. Sup. Ct. 60 ( 1880 )


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  • Gilbert, J.:

    An owner of real property is liable for an injury caused by a nuisance thereon, although the premises were in the possession of an occupying tenant when the injury happened, if the nuisance existed at the time of the demise. That principle is well settled. The question then is, was the leader running from the defendant’s house a nuisance ? It was constructed for the purpose of discharging water upon a sidewalk in Fourth street, in the city of Brooklyn, which originally flowed into it from the defendant’s and the adjoining premises, but which afterwards received only the flow from the latter. In December, 1816, a quantity of water so discharged congealed into a mound of ice upon the sidewalk, and •so rendered it unsafe. The plaintiff, while passing along the sidewalk, suddenly and without fault on her part, slipped upon that mound of ice and fell backward, breaking her leg by the fall. It is also a familiar rule that any act or thing which detracts from the. safety of travelers upon a highway or street is a nuisance. It may continue for a long period without causing any injury. Nevertheless it is a nuisance on account of its capability to cause an injury. The accumulation of water in reservoirs — the storage of explosive substances — the keeping of savage or vicious animals upon one’s premises, are examples of such nuisances. Those who create or *62maintain them, may be liable to indictment therefor, before any actual damage ensues, but an action lies only for a private injury occasioned thereby. Nor will the utmost care to prevent injury protect the author of a nuisance against such liability. Indeed, no-question of negligence is involved in such a case. One who has been injured by the wrongful act of another, is entitled to compensation for such injury, although the wrong-doer did not intend to-do an injurious act, and was careful to avoid doing one. (Congreve v. Smith, 18 N. Y., 82; Swords v. Edgar, 59 Id., 34; Roswell v. Prior, 12 Mod., 639; Thompson v. Gibson, 7 M. & W., 458.)

    It is urged that the proximate cause of the accident to the plaintiff was the omission of the tenant to perform his duty of removing the ice from the sidewalk. The answer is that the ice was the immediate cause of the injury, and that the ice was upon the sidewalk, in consequence of the wrongful act of the defendant. The negligence of the tenant in not destroying the consequences of the nuisance, cannot excuse the wrongful act of the defendant-in creating it. Both may justly be held liable. The fact that-the water flowed from the roof of the adjoining premises, cannot relieve the defendant from liability. His liability springs, from his wrongful interference with the sidewalk, by constructing or maintaining a pipe. which discharged water thereon when the weather was cold enough to freeze it. It can make no-difference to the person injured, whether the water discharged flowed from the defendant’s roof or that of his neighbor. The mischief was produced by the discharge from, not the flow into, the pipe.

    If the foregoing views are correct, the cause was properly disposed of at the Circuit, and the judgment and order denying a new trial should be affirmed, with costs.

    Present — Barnard, P. J., Gilbert and Dxkman, JJ.

    Judgment and order denying new trial affirmed, with costs.

Document Info

Citation Numbers: 29 N.Y. Sup. Ct. 60

Judges: Barnard, Dxkman, Gilbert

Filed Date: 9/15/1880

Precedential Status: Precedential

Modified Date: 2/4/2022