Murphy v. Leggett , 29 A.D. 309 ( 1898 )

Patterson, J.:

This is an action to recover damages for personal injuries. The complaint contains substantially two causes of action; one based upon an alleged liability for the construction and maintenance of a nuisance in a highway, and the other for negligence. The case was submitted to the jury in both its aspects, and they brought in a verdict for the plaintiff, from the judgment entered upon which, and from an order denying a motion for a new trial, this appeal is taken.

The following material facts appeared in evidence: The defendants occupied and used in an extensive business a building in the city of Hew York, facing upon three streets, namely, West Broadway, Franklin street and Yarick street. As one of the appurtenances of their building, and for convenience in handling merchandise, they constructed on the West Broadway front a platform, which, from the house line to the exterior of the platform, occupied six feet three and one-quarter inches of the public sidewalk. The platform was some seventy feet from end to end, and at each end were two steps. There were two doors in the house front that ojiened upon this platform. It was the custom of the defendants to have wagons and trucks back up against this platform, from which vehicles goods were unloaded upon the platform, and then carried into the building. On the morning of the 19th of January, 189J, the plaintiff, passing along West Broadway, found the sidewalk in front of defendants’ premises obstructed by two wagons or trucks backed against the platform above mentioned. There were other vehicles in the street, including horse cars, and the plaintiff, finding the sidewalk beyond the platform obstructed by wagons, in the manner indicated, ascended the steps at the southerly end of the platform, walked along it in safety until she neared the southerly end, when she slipped upon some substance and fell, thereby sustaining the injuries of which she complains.

So far as negligence is concerned, it is imputed to the defendants having allowed some material to remain upon the platform, and upon which a pedestrian might slip and fall while availing himself of that platform as a means of passing along the street.

The case having been summitted to the jury in both aspects, it is impossible to say upon which a verdict was found. If it were on the ground of negligence the verdict cannot be sustained, for there is no evidence to show that, in the use or care of the platform, there was any remissness in duty on the part of the defendants. The accident occurred a few minutes after eight o’clock in the morning, and the proof shows that the platform was swept clean about half-past seven o’clock the same morning. In order to sustain the judgment it is necessary that the cause of action resting in nuisance should he made out, and that the proof should be in such a condition that, on the whole case on that subject, there remained nothing for the jury to do but assess damages. The learned trial judge left it to the jury to determine whether the defendants were responsible for the creation or maintenance of a nuisance in the street. In this respect, we think, he was in error, but it was one far from prejudicial to the defendants. In our view of the case it is clearly established that the construction of the platform, as it existed in the street, was in and of itself a nuisance. It was a construction entirely unauthorized; no permission had been received from the municipal authorities to erect the platform, and it was plainly an unlawful structure. It was permanent, it had been there for years, and in itself, as well as in the manner of its use, was unauthorized. The defendants claim the right to maintain the structure under the authority of an ordinance of the common council, passed December 28, 1880, arid approved by the mayor. Under what was held in Jorgensen v. Squires (144 N. Y. 280) it may be conceded that a permission to erect some sort of a platform might be implied; but there is nothing contained in that ordinance from which the implication could arise of permission to maintain such a structure as that in front of the defendants’ premises on West Broadway. That ordinance contains a prohibition against the construction of a platform, stoop or step in any street in the city of Hew York, which shall extend more than one-tenth part of the width of the street, or more than seven feet in all, or which shall be of greater width than is necessary for the purposes of a convenient passageway unto the house or bmldvng. Whatever permission is to be inferred from this ordinance must be limited to a structure extending out into the street, not more than seven feet and not wider, regard being had to the frontage of the building, than is necessary for a convenient passageway into the house or building. 'The structures permitted by that ordinance are such as relate solely to passageways into a house or building, and there is absolutely nothing in the case to show that the defendants were authorized to construct a platform seventy feet long in order that they might have convenient passageway into the only two doors in the whole of their West Broadway front. Hot only was this construction a nuisance in itself, but the manner in which it was used aggravated that nuisance. The backing up of carts and vehicles, and the occupation in that manner of the sidewalk for an unreasonable length of time, of itself constitutes a nuisance in the use and is indictable. (People v. Cunningham, 1 Den. 524.)

The case does not resemble those in which the sidewalk is temporarily obstructed for the purpose of discharging or receiving merchandise. Here was a permanent unauthorized structure used in such a way that pedestrians were excluded from the sidewalk; and such was the condition that existed at the time this plaintiff was compelled to walk upon the platform in order to proceed in her journey along the street. All who continue, and who are in any way responsible for such a nuisance in the street, are liable to a person injured thereby. (Congreve v. Smith, 18 N. Y. 79; Creed v. Hartmann, 29 id. 591; Sexton v. Zett, 44 id. 431; Clifford v. Dam, 81 id. 56; Irvine v. Wood, 51 id. 224; Muller v. McKesson, 73 id. 204; Cohen v. The Mayor, 113 id. 535.) In the last case it was said : “ 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, under temporary exceptions, as to deposits for building purposes and to load and unload wagons and receive and take away property for or in the interest of the owner of the adjoining premises, which it is not now necessary to more specifically enumerate. The extent of the right of such exceptional user was before us in the late case of Callanan v. Gilman (107 N. Y. 360), and nothing more need be said regarding it here.”

So far, then, as the plaintiff’s case rested upon allegations concerning the existence of a nuisance, it was established; and it only remains to consider whether the proximate cause of her injury was that nuisance. Much ingenuity has been disjilayed in the effort to make general definitions of proximate cause, both in accident and in marine insurance cases, but none of them are altogether satisfactory. In accident cases, the real inquiry is: What was the cause of the occurrence ? What was it that put the plaintiff in peril? The slipping of the plaintiff upon the platform was only a result of the necessity which compelled her to use the platform. She had a right to an unobstructed sidewalk, and it is not necessary to look beyond the fact that the injuries she sustained were directly in consequence of the unlawful obstruction of the sidewalk. - In the case of Cohen v. The Mayor (supra) a pedestrian on the sidewalk was struck by the thills of a wagon which the owner had left in' the street, the wagon not then being in use. The thills had been standing upright and a passing ice cart struck the wagon, turned it partly around, the thills fell down and struck and killed the pedestrian, and it was held'that, as the accident happened because of the jwesence of the obstruction, it was the proximate cause of the injury. It was entirely clear in that case that what caused the thills to fall was the striking of the wagon by the ice cart, just as in this case what caused the plaintiff to slip may have been the presence of mud or paste upon the platform; but that which really caused the accident in both cases was the obstruction in the street, for if the unlawful thing had not been there the accident could not have happened in either case in the way in which it occurred.

We are of opinion, upon all the testimony, the defendants were liable for the maintenance of a nuisance, and that the plaintiff was entitled to recover such an amount as the jury might assess for damages.

The judgment and order appealed from must be affirmed, with costs.

Van Brunt, P. J., concurred; Barrett and Rumsey, JJ., dissented.