Steeves v. City of Rochester

• Decision Date: 19 July 1944
• Citation: 56 N.E.2d 735,293 N.Y. 727
• Parties: STEEVES v. CITY OF ROCHESTER (two cases).
• Court: New York Court of Appeals Court of Appeals

293 N.Y. 727

56 N.E.2d 735

STEEVES

v.CITY OF ROCHESTER (two cases).

Court of Appeals of New York.

July 19, 1944.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Actions by Henry M. Steeves, Jr., an infant, by his guardian ad litem, Henry Martin Steeves, Sr., and by Henry M. Steeves, Sr., against the City of Rochester for personal injuries sustained by infant plaintiff when burned by flaming oil from a pot torch in a public street. From judmgents of the Appellate Division 267 App.Div. 802, 47 N.Y.S.2d 289, 290, affirming by a divided court judgment of the Supreme Court for defendant on dismissal of the complaints by a Trial Term, Cribb, J., at the close of plaintiffs' cases, plaintiffs appeal.

Affirmed.

CONWAY and RIPPEY, JJ., dissenting.

John J. Scully, of Albany, for appellants.

Charles B. Forsyth, Corp. Counsel, of Rochester (Sam Di Pasquale, of Rochester, of counsel), for respondent.

PER CURIAM.

The judgments should be affirmed, without costs.

LEHMAN, C. J., and LOUGHRAN, RIPPEY, LEWIS, DESMOND, and THACHER, JJ., concur.

CONWAY, J., dissents in the following opinion in which RIPPEY, J., concurs.

CONWAY, Judge (dissenting).

These are appeals from nonunanimous judgments of affirmance by the Appellate Division, Fourth Department, of judgments of the Supreme Court, Monroe County, dismissing the complaints at the close of the plaintiffs' case on the grounds that plaintiffs had failed to prove defendant's negligence and plaintiffs' freedom from contributory negligence.

The infant plaintiff (hereinafter called plaintiff), was injured when a pot torch (also called a flare or a bomb) exploded. He was then eleven years and four months old. He and another boy observed the pot torch at the corner of two streets in the City of Rochester, between the main curb and the sidewalk near a WPA sign. His companion kicked it. Plaintiff kicked it twice to set it upright again. The boys left it for a few minutes and then returned. They noticed that the pot torch had been tipped over, that oil was coming from it and that the sign and the fence near the sign were on fire. The boys became frightened and tried to extinguish the flame from the oil. The plaintiff kicked the torch to get it in an upright position. It ‘exploded or something like that.’ Plaintiff testified: ‘There was a flash of all different colors.’ The plaintiff was set on fire and so badly burned that he was in a hospital for nearly a year.

There are two types of pot torches. ‘The old type has a square bottom and rounded off like a little ball, and you can slide it along the ground. It will hold about a quart of kerosene oil and a big heavy wick. And the new type are like one of these ball affairs that tips over and tips back itself. You can't tip them over hardly, because it tips back.’ The torch here was not a flat bottomed one.

There was testimony from various city employees from the city police and fire departments that complaints were received about children playing with pot torches about four or five times a week. Those children used the torches to light papers and piled leaves about them to start bonfires. When the city officials received notice of fires caused by children in this manner, they summoned the police car and, if the fire were serious, summoned the fire department apparatus also.

The trial court dismissed the complaint on the ground that plaintiff had failed to prove defendant's negligence and plaintiff's freedom from contributory negligence. The Appellate Division affirmed by a closely divided court.

It is well settled that a city is liable for failure to keep and maintain its streets and sidewalks in a reasonably safe condition for the use of the public and that it is liable for permitting dangerous obstructions or nuisances thereon. Koehler v. City of New York, 262 N.Y. 74, 77, 186 N.E. 208, 209;Stern v. International R. Co., 220 N.Y. 284, 294,115 N.E. 759, 762, 2 A.L.R. 487;Kamnitzer v. City of New York, 265 App.Div. 636, 638, 40 N.Y.S.2d 139, 141, 142.

We have also said that: ‘A dangerous attraction in a public highway may impose liability to a child on the part of the one responsible therefor, because of failure to exercise due care although there would be no liability if the attraction were upon private premises where the child had no right to go.’ Tierney v. New York Dugan Bros., Inc., 288 N.Y. 16, 19, 41 N.E.2d 161, 162, 140 A.L.R. 534.

While the highway here was in a safe condition for an adult, since the excavation work and the sign were illuminated by the pot torch, it may not have been safe for a child because the pot torch was ‘a dangerous attraction’ to a child. There is ample evidence in the case that children played with the pot torches; that fires were caused in that manner; that the city had knowledge of it. The defendant could reasonably anticipate that some one would be hurt as a result.

In Tierney v. New York Dugan Bros., Inc., supra, defendant's servant left an electric truck unattended and unlocked while he made deliveries, while he knew there were children about. Plaintiff and two other children set it in motion and plaintiff was injured when he jumped from the moving vehicle. It was held that the danger of interference by little children indulging their instincts of play was apparent and that the driver should have left the vehicle in such condition that it could not be put in motion.

In Long v. City of Dunkirk, 260 N.Y. 599, 184 N.E. 109, a kettle of tar was placed on a truck parked on the street. Boys climbed onto the truck and took tar from the kettle. Plaintiff put his hand down deep in the kettle and his hand was burned by hot tar. We held that to leave the kettle unguarded and uncovered was a negligent act.

In Parnell v. Holland Furnace Co., 260 N.Y. 604, 184 N.E. 112, a damaged car was left in a space between defendant's property and a building where people dwelt. The space was used in common by tenants of both buildings. A child removed the cap from the fuel tank. Subsequently plaintiff stood on the running board of the car, striking stones together, as a result of which there was an explosion and plaintiff was injured. We held that defendant had a duty not to leave such a dangerous instrumentality in the alley when it knew that children were playing there.

The difficulty with the instnat case is that defendant had a right and duty to place a light of some kind in front of the sign. The only question is whether defendant should have used some other type of light than a pot torch, because of the likelihoodthat children would play with pot torches and be burned.

Section 80-10 of the Building Code of the City of Rochester provides: ‘Warning Lights. All pits, excavations, fences, barriers, builder's equipment, building materials or rubbish in or upon a street * * * shall have placed upon or by them, after dark, a number of illuminated lamps with red globes. Such lamps shall be so located and maintained as to afford proper warning of danger to pedestrians and vehicles.’

Section 62-27 provides: ‘Streets to be guarded when being improved. 1. Whenever a pavement or sewer is being constructed or repaired in a street, or whenever pipes, mains or conduits are being laid or repaired in a street, or whenever any other work is being done in a street, it is the duty of the person performing the work to place and maintain sufficient guards about the place where the work is being done, so as to secure public safety, until said street is ready for use and such person must at all times during the night keep lighted lamps not more than twenty-five feet apart upon said guards so as to give warning to all persons of such work.’ (Emphasis supplied.)

Certainly pot torches are not ‘illuminated lamps with red globes' and we doubt that they are included in the term ‘lighted lamps' as used in ordinary language. While a violation of those ordinances may not be a basis of a cause of action here since they were ‘intended for the protection of persons traveling on the highway in the usual manner’ (Swift v. City of New Yokr, 270 N.Y. 162, 165, 200 N.E. 681, 682), we think they are some evidence that lamps rather than pot...