I concur in the opinion of the chief judge, in so far as he holds that the judgment of nonsuit should be reversed as to McDonald; but I am also of the opinion that there should be a reversal as to the city of New York.
Assuming that the fire department and the bureau of combustibles exercised a governmental function and that such bureau was charged with the duty of regulating the use of dynamite, yet I think the city is not relieved from liability in this case by reason of such facts. The care and maintenance of highways in a safe condition was also the exercise of governmental functions. But it was long since held in this court that municipalities which exist under charters issued by the state, vesting in them the care and maintenance of the highways, were by reason of the acceptance of such charters impliedly *Page 117 deemed to have contracted to keep and maintain the highways in a safe condition; and that for a failure so to do, the municipalities became liable in damage to the persons injured. (Conrad v. Trustees of Village of Ithaca, 16 N.Y. 158. See, also, Weet v. Trustees of Village of Brockport, reported in note, 16 N.Y. 161.) If placing the public ways under the care of the police or fire departments will relieve the municipalities from liability for injuries resulting from unsafe highways, then an easy way has been discovered by which they can annul their contractual relation to the people of the state. I am unwilling to assent to such a doctrine. I am of the opinion that the city of New York in accepting its charter from the state has undertaken to keep the streets and highways in a safe condition, and this duty being contractual it becomes a municipal duty and remains such even though they may employ policemen or firemen to assist in the discharge of that duty.
It appears from the evidence that the contractor in constructing a subway underneath Park avenue was permitted to sink two shafts in the avenue at the corner of Forty-first street, one on the west side in front of the Murray Hill Hotel and the other on the east side of the avenue. These shafts were inclosed by a fence, but between the westerly curb and the inclosure there was retained a passageway for vehicles. Inside of the fence, on the highway, was constructed a platform upon upright posts about twelve feet high, on which was placed an engine and boiler and hoisting apparatus. Underneath the platform, which supported the engine and boiler, was maintained a magazine for dynamite. The magazine was a wooden shanty, entrance to which was had through a door which was frequently left open. In cleaning out the fire under the boiler they dumped the fire on the floor of the platform above the magazine or else threw it on to the pavement below. Inside the shanty was erected a cupboard with sliding shelves made of wire netting for *Page 118 holding the dynamite, and underneath this cupboard was a coil of steam pipes which were heated by live steam from the boiler above and used for the purpose of thawing the dynamite when frozen. The shanty, having no windows, was dark and consequently a light was necessary. This was furnished by a candle on the south wall which was held in place by two nails crossing each other and driven into the woodwork. The candle was left burning nearly all the time. Occasionally paper used in tamping was left under the candle and only two feet away from it. The fixing of the explosive caps to the dynamite sticks and making up the tamping paper into cartridges for blasting purposes was done inside of the shanty, and the magazine was frequently left with no one in charge, with the candle burning and with the door unlocked. The evidence further tends to show that in the magazine there was usually stored from one hundred and fifty to six hundred pounds of dynamite, and on the day of the explosion, the 27th day of January, 1902, there was at least three hundred and fifty pounds, and perhaps six hundred and fifty pounds, therein. This structure had been maintained for such a length of time that the city must be deemed to have had notice of its existence.
I am of the opinion that the evidence was sufficient to justify a finding that the city had suffered a dangerous nuisance to be maintained in Park avenue, a public highway, in violation of its agreement with the people of the state, and that consequently it was responsible for the damages caused by the explosion.
WERNER, WILLARD BARTLETT, CHASE and COLLIN, JJ., concur with CULLEN, Ch. J.; HAIGHT, J., reads opinion dissenting from affirmance of judgment in favor of the city of New York; HISCOCK, J., absent.
Judgment accordingly. *Page 119