McFarlane v. City of Niagara Falls

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 fan-like 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.

The case was tried upon the theory of nuisance. The

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 ). 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. Nat. Carbonic Gas Co., 189 N. Y. 40 ). 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 ). 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 Canandaigua v. Foster, 156 N. Y. 354 ). The tumbledown house abutting on a highway is trans

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

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) was another case

Nolan v. King ( 97 N. Y. 565 , 571, 572) 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 ) 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 ) is a case of a fall upon ice, and Whalen v. Citizens’ Gas Light Co. ( 151 N. Y. 70 ) 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;

The danger may be so apparent that a traveler ought to have seen it, though he professes he did not (see Whalen v. Citizens’ Gas Light Co., supra, p. 73; Mosheuvel v. District of Columbia, 191 U. S. 247 ). A presumption of safety will not serve as an excuse for blind indifference to consequences. One must use the streets as others use them (cf. Casey v. City of Malden, 163 Mass. 507 ). The wayfarer, who has the sense of sight, is not to close his eyes or travel as one blind (Davenport v. Ruckman, 37 N. Y. 568 ). The driver is not to fling aside the reins, and rush headlong into the ditch. We said of the plaintiff in the Whalen case: “It is difficult to conceive how she could have avoided seeing the obstacle unless she was heedlessly proceeding in utter disregard of the precautions usually taken by careful and prudent people ” (151 N. Y. at p. 74). If so, the fault was hers.

The rule to be extracted from these and like cases (e. g., Chisholm v. State, 141 N. Y. 246 ; Morrell v. Peck, 88 N. Y. 398 ; Minick v. Troy, 83 N. Y. 514 ) may now "be formulated. At least where the substance of the wrong is negligence, a plaintiff, though pleading nuisance, is under a duty to show care proportioned to the danger. Reasonable care is merely care so proportioned. The danger may be seen or unseen. If seen, there must be effort to avoid it. If unseen, the inquiry will be whether one using a street as travelers commonly do, would perceive the danger, and escape it. The relativity of the concept of negligence is to be kept in mind throughout. Movement on a highway is not governed by a special rule unknown to movement elsewhere. One who walks through the aisle of a department store at the invitation of the proprietor does not look for traps and obstacles any more than on a street if there is nothing to suggest them. The act should fit the need (cf. Shearman & Redfield on Negligence, § 375, and cases there cited).

In thus limiting our ruling, we are not to be understood as holding by implication that where the nuisance is absolute, the negligence of the traveler is a fact of no account. One of the earliest cases in the books on the subject of contributory negligence is Butterfield v. Forrester (11 East, 60). A pole had been placed across a highway. There was thus a nuisance in the strictest sense. Plaintiff riding violently ran into the pole, and was hurt. The court did not hold that his fault was immaterial. Bayley, J., at the trial instructed the jury that if a person could have seen and avoided the obstruction, and if they were satisfied that the plaintiff was riding along the street extremely hard and without ordinary care, they should find for the defendant, which they accordingly did. Lord Ellenborough, C. J., in refusing a new trial, laid down the rule of law: “ One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, an obstruction of the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.” (Butterfield v. Forrester has been a leading case in England (1 Beven on Negligence [2d ed.], p. 169; Pollock on Torts [10th ed.], p. 487; Salmond on Torts [3d ed.], pp. 34, 36) and has been recognized as law in decisions in this State (Harlow v. Humiston, 6 Cow. 189 , 191; Dygert v. Schenck, 23 Wend. 446 ; cf. Congreve v. Smith, 18 N. Y. 79 ; Corcoran v. City of N. Y., 188 N. Y.

When a case of absolute nuisance shall be here, there will be need to determine whether contributory negligence in any sense is a factor to be weighed in determining liability. The factor is not eliminated by saying that to make out contributory negligence in situations of that order the conduct, if attributed to a man of' normal understanding, must betoken indifference to consequences, known or unknown. This may be merely to say in other words that there is a duty of reasonable vigilance in proportion to the risk. Very often, something close to indifference must appear though the basis of liability is nuisance growing out of negligence (McGuire v. Spence, supra). There are times even then, as we have already pointed out, when fault must approach a complete abandonment of caution to make out the absence of ordinary care. We leave the question open whether in cases of absolute nuisance affecting travel on a highway, the test is greatly different.

What remains is to apply the law here stated to the facts. The plaintiff had observed this projection during her walks about the neighborhood. She could hardly fail to observe it, for it was sixteen inches long. She does not tell us how easily it could be seen in the conditions of light and shadow prevailing when she fell. She does not even say whether she saw it. She rests her case upon the statement that catching her heel on the cement, she was thrown to the ground. We are far from holding that a jury, applying to her conduct the appropriate standard

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted with costs to abide the event.

Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Judgments reversed, etc.