Majority
p. 615Virginia Triay, an Infant, by Edward J. Triay, Her Guardian ad Litem, Appellant, v. Richard Carvel Co., Inc., Respondent. First Department, May 5, 1916.
Headnote
Nuisance — obstruction of street by municipal contractor — injury to pedestrian—when contributory negligence of infant question of fact.A pile of lumber placed by a municipal contractor partly on the sidewalk and partly on the roadway of a public street constitutes a nuisance, if he had no permit allowing him to do so and it does not appear that the work required it.
Hence when it is shown that an infant six years of age lawfully using the sidewalk stumbled over the lumber and was injured, there was a prima facie case of liability against the defendant.
Under the circumstances the questions as to the contributory negligence of the child and its mother were for the jury under proper instructions, and should not be determined as questions of law.
Appeal by the plaintiff, Virginia Triay, from a judgment of the County Court of Bronx county in favor of the defendant, entered in the office of the clerk of said county on the 24th day of January, 1916, upon a dismissal of the complaint by direction of the court at the close of the case, and also from an order entered in said clerk’s office on the 30th day of December, 1916, denying plaintiff’s motion for a new trial made upon the minutes.
William S. Evans, for the appellant.
Nathan F. Oiffin, for the respondent.
The plaintiff, a child six years of age, stumbled over a plank, being one of a number which had been dumped by the defendant in-the highway, partly on the sidewalk and partly in the roadway. This pile of lumber constituted a nuisance. (Lawton v. Olmstead, 40 App. Div. 544 ; Place v. Delaware, L. & W. R. R. Co., 157 id. 24.) It is true that defendant was a contractor for a work of public improvement and that it probably intended to use the lumber in its work, but it had received no permit to place the lumber where it did place it, nor does it appear that any necessity of the work required that
p. 616
it should he so placed and kept for several days. The plaintiff was lawfully using the sidewalk and the evidence made out a prima facie case of liability against the defendant. Whether there was contributory negligence on the part of the child or its mother was for the jury under proper instructions. We certainly cannot say .that such negligence appeared from the evidence as matter of law. Thé judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.
Claree, P. J., McLaughlin, Smith and Davis, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.
Cases cited
- Lawton v. Olmstead 40 App. Div. 544 p. 615