McFarlane v. City of Niagara Falls

• Decision Date: 14 February 1928
• Citation: 247 N.Y. 340,160 N.E. 391
• Parties: McFARLANE v. CITY OF NIAGARA FALLS.
• Court: New York Court of Appeals Court of Appeals

247 N.Y. 340

160 N.E. 391

McFARLANE

v.CITY OF NIAGARA FALLS.

Court of Appeals of New York.

Feb. 14, 1928.

Action by Frances McFarlane against the City of Niagara Falls. Judgment of the Trial Term entered on verdict for plaintiff was affirmed by theAppellate Division (220 App. Div. 799,222 N. Y. S. 848), and defendant appeals.

Reversed, and new trial granted.

See, also, 221 App. Div. 789, 223 N. Y. S. 887.

Appeal from Supreme Court, Appellate Division, Fourth department.

George W. Knox, of Niagara Falls, for appellant.

Francis T. Findlay, of Niagara Falls, for respondent.

CARDOZO, C. J.

Plaintiff, walking in the city of Niagara Falls, stumbled as she was stepping from the driveway to the walk. She caught her heel against a fanlike projection where the cement had melted and run. The projection jutted out about sixteen inches and was irregular and slanting with declivities and hollows. The same conditions had existed since the construction of the walk two or three years before. The plaintiff lived in the neighborhood. She had noticed the projection at other times, though she had paid no particular attention to it. Her mishap occurred during an afternoon in late December, after darkness had set in. She suffered injuries for which she sued.

[1] The case was tried upon the theory of nuisance. The jury were told, in substance, that a nuisance existed if the city maintained the walk in a dangerous condition. Danger, we think, there was in unreasonable degree, or so a jury might find. A traveler is not always on his guard against a projection so unusual. He measures his gait in the belief that he has a clear space ahead of him before stepping on the walk. He is taken by surprise when something strikes against his heel and stays the motion of his foot. A prudent municipality would know that if this should come to pass, there would be danger more than fanciful.

If danger there was, then also there was nuisance, though nuisance growing out of negligence. Nuisance as a concept of the law has more meanings than one. The primary meaning does not involve the element of negligence as one of its essential factors. Heeg v. Licht, 80 N. Y. 579, 36 Am. Rep. 654. One acts sometimes at one's peril. In such circumstances, the duty to desist is absolute whenever conduct, if persisted in, brings damage to another. 21 Halsbury, Laws of England, p. 507, § 845. Illustrations are abundant. One who emits noxious fumes or gases day by day in the running of his factory may be liable to his neighbor though he has taken all available precautions. McCarty v. Natural Carbonic Gas Co., 189 N. Y. 40, 81 N. E. 549,13 L. R. A. (N. S.) 465,12 Ann. Cas. 840. He is not to do such things at all, whether he is negligent or careful. One who digs a hole in the highway will not be heard to say if he dug it without license that the guards placed about it were destroyed without his fault. Congreve v. Smith, 18 N. Y. 79;Wolf v. Kilpatrick, 101 N. Y. 146, 4 N. E. 188, 54 Am. Rep. 672. He was a wrongdoer in digging, and diligence in guarding does not eradicate his fault. Other situations there are, however, where what was lawful in its origin may be turned into a nuisance by negligence in maintenance. The coal hole, built under a license, may involve a liability for nuisance, if there is negligence in covering it. Trustees of Village of Canandaigua v. Foster, 156 N. Y. 354, 50 N. E. 971, 41 L. R. A. 554, 66 Am. St. Rep. 575. The tumbledown house abutting on a highway is transformedinto an unlawful structure if its ruinous condition is a menace to the traveler. Timlin v. Standard Oil Co., 126 N. Y. 514, 27 N. E. 786,22 Am. St. Rep. 845. In these and like situations, the danger, being a continuing one, is often characterized as a ‘nuisance,’ though dependent upon negligence. Indeed, one of the most familiar instances of nuisance is a highway out of repair. Pollock, Torts (10th Ed.) p. 1016. Narrow, too, is the line between nuisance and negligence. One can create a nuisance by leaving a wagon in the street. Cohen v. Mayor, etc., of New York, 113 N. Y. 532, 21 N. E. 700, 4 L. R. A. 406, 10 Am. St. Rep. 506. If the danger threatens the public, the nuisance is classified as common; private, if it threatens one person or a few. Halsbury, supra, p. 515, § 865.

[2] We have gone into these distinctions for their bearing on the law of contributory negligence. The trial judge told the jury that contributory negligence, though proved, would not avail as a defense. If the defendant was at fault at all, liability would follow, though plaintiff was at fault also. His final word was this:

‘I intended to charge that if the jury found that the accident was caused by her negligence, and her negligence alone, or on account of a mishap or accident for which nobody was responsible, the plaintiff cannot recover. But if it was caused because the defendant maintained a dangerous place there, and the maintenance of that dangerous place either was the entire cause or was a part cause of this accident, then the plaintiff can recover.’

We think the charge was error.

Not a little confusion runs through the reports as to the effect of contributory negligence upon liability for nuisance. Statements appropriate enough in their application to nuisances of one class have been thoughtlessly transferred to nuisances of another. There has been forgetfulness at times that the forms of actions have been abolished, and that liability is dependent upon the facts and not upon the name. Confining ourselves now to the necessities of the case before us, we hold that whenever a nuisance has its origin in negligence, one may not avert the consequences of his own contributory negligence by affixing to the negligence of the wrongdoer the label of a nuisance. Junkerman v. Tilyou Realty Co., 213 N. Y. 404, 408,108 N. E. 190, L. R. A. 1915F, 700;Uggla v. Brokaw, 117 App. Div. 586, 591, 102 N. Y. S. 857;Lusk v. Peck, 132 App. Div. 426, 432, 116 N. Y. S. 1051;Id., 199 N. Y. 546, 93 N. E. 377;Hartman v. Lowenstein, 90 Misc. Rep. 686, 689, 154 N. Y. S. 205. Very often the sufferer is at liberty to give to his complaint either one label or the other. It would be intolerable if the choise of a name were to condition liability. The snow or ice suffered by a municipality to remain upon the walk is one wrong, and one only, whatever the traveler may call it. Williams v. City of New York, 214 N. Y. 259, 108 N. E. 448.

The cases in this court hold nothing to the contrary.

Clifford v. Dam, 81 N. Y. 52, was a case of injury to a traveler through an opening in a highway. License was not pleaded. We held that, unless pleaded, it might not be proved. The defendant therefore was a wrongdoer, and subject to a liability not dependent upon negligence. Much of what was said as to contributory negligence was unnecessary to the decision. The trial judge had not charged that contributory negligence would not affect a recovery. On the contrary, he had charged (as an examination of the record shows) that the plaintiff must fail ‘if by any negligence on his part he contributed to the injury, no matter in how slight a degree.’ What followed was explanatory of the meaning of contributory negligence in the situation then at hand. The jury were reminded that the plaintiff was lawfully upon the highway. ‘He was in a position where he was not bound to keep a special lookout for pitfalls; he had a right to assume that the public highway would be safe for all travelers; and he had a right to act on that assumption.’ To this there was no exception. There was little more than an expansion of the same thought in the opinion rendered here.

McGuire v. Spence, 91 N. Y. 303, 305,43 Am. Rep. 668, was another case of an uncovered opening. It was decided upon an assumption for the purpose of an appeal that contributory negligence, if proved, would have been an obstacle to relief. All that was held was that the jury were at liberty to find that such negligence was absent. ‘Negligence,’ it was said, ‘is a relative term.’ ‘One who passes along a sidewalk has a right to presume it to be safe.’ There is no duty to be alert for danger where none should be expected. Cf. Mullins v. Siegel-Cooper Co., 183 N. Y. 129, 138,75 N. E. 1112;Jennings v. Van Schaick, 108 N. Y. 530, 15 N. E. 424,2 Am. St. Rep. 459.

Nolan v. King, 97 N. Y. 565, 571, 572,49 Am. Rep. 561, supplements very neatly the ruling in McGuire v. Spence, supra. It shows how there comes, with changed expectations of the likelihood of danger, a changed standard of precaution. There a temporary bridge had been laid over a walk while the work of building was under way. The bridge, though put up under permit, was said to be unsafe. The court held that a passenger was not at liberty to cross with as little heed and care as upon a completed pavement.

Kelly v. Doody, 116 N. Y. 575, 22 N. E. 1084, was a case of an excavation in a street. Plaintiff, who lived nearby, had knowledge of the trench, for which a permit had been issued. A charge that a recovery would not be affected by contributory negligence was held to be erroneous. ‘The action does not belong to that class of actions where the obstruction in a street is without authority and wholly wrongful, such as the case of Clifford v. Dam, 81 N. Y. 52, and the cases there cited.’

Weston v. City of Troy, 139 N. Y. 281, 34 N. E. 780, is a case of a fall upon ice, and Whalen v. Citizens' Gas Light Co., 151 N. Y. 70, 45 N. E. 363, one of a fall upon a flagstone. In each there was a ruling that a traveler who sees the danger must use reasonable care to overcome or escape it. ‘The presumption which a wayfarer may indulge, that the streets of a city are safe, and which excuses him from maintaining a vigilant outlook for dangers and defects, has no application where the danger is known and obvious.’ Weston v. City of Troy, supra.

The danger may be so apparent that a traveler ought to have seen it, though he professes he did not. See Whalen v. Citizens'...