The plaintiff has recovered a judgment for personal injuries sustained by her while she was witnessing, from abutting property, a test of the speed of automobiles upon a highway in the bo.rough of Richmond. The appellants against whom the judgment has been obtained are the City of New York, the Automobile Club of America and the individual members of the racing committee of that club, under whose personal supervision the test of speed was made.
The trials of speed were had on the 31st day of May, 1902, on a public highway known as the Southside boulevard in the borough of Richmond, the course being a certain measured mile of the highway which had been then known as a “ speedway ” and used for fast driving and horse racing for a number of years. This portion of the boulevard had been set apart and improved for speedway purposes in 1900. under the direction of the chief engineer of highways of the borough, pursuant to a resolution of the local board, confirmed by resolution of the board of public improvements. It is located about three-quarters of a mile from the ocean, in an unsettled region, having but two houses — hotels — on the course. A crowd of several thousand people assembled on the occasion in question to witness the contests. The trials of speed were held on the assumed - authority of a resolution adopted by the board of aldermen of the city, on April 22,1902, as follows:
“ Ltesdlmed, That upon the recommendation of the local Board, First District, Borough of Richmond, permission be and the same is hereby given to the Automobile Club of America, to conduct speed trials for automobiles on the Southside Boulevard, in the Fourth Ward of the Borough of Richmond, on Saturday, May 31, 1902, between the hours of eleven o’clock a. m. and four o’clock p. m., or in case the day be stormy, on the first clear week-day thereafter, between the same hours; and that during said hours on said day a speed of greater than eight miles per hour may be attained, to which end any and all ordinances regulating the speed of vehicles
The precautions taken by those in -charge -of tine ¡speed ¡contests to insure safety were comprehensive ..and" extraordinary. The -surface of the .roadway was smoothed and'rolled,.. A bridge was- lowered so as to avoid a bump. The -tracks -off a trolley line which crossed the course were covered up, and traffic by cars 'suspended at that point during the contests. ‘ The streets and -avenues crossing or intersecting the boulevard were barricaded by board fences. Posts were placed on ¡one side, -of the boulevard .and ropes strung from them along the entire -course, A telephone .lime was- «erected and electric gongs put up which rang (continually whenever ¡an automobile was ramming on the course. Flagmen were .stationed along the course, each carrying a red flag, to wars people -of the .approach'of an ¡automobile; More than .100 policemen belonging to the city force Were on duty guarding the course ¡and keeping .people off .if during the running of the machines. Am ambulance and a hospital .or emergency tent were provided, supplied with ice, .medicines and surgical appliances -and .attended by physicians and. trained ¡nurses. And, as an extra and .final precaution, but one -automobile was allowed on the course a* a time,, each" finishing its -exhibition of speed before another machimo was permitted- a trial.
The plaintiff was voluntarily present, at the speed trials as ;a- spectator. She came there as she said “to see the races.” -She resided about five miles from the course, and iu company with her‘husband and another lady and'gentleman drove from her home to the village of Bichm-ond, and went thence by trolley to the boulevard. Alighting from the car on the ¡side of, the boulevard where the ropes were strung, and ascertaining that ¡a better view of the contest could be obtained from the other tide,, the party lifted the ropes, passed under them, -crossed the boulevard, and stationed themselves in the woods -adjoining the highway. The plaintiff remained in the woods until the casualty occurred which constitutes her grievánee. . Many automobiles went down the course ¡at a high rate, of speed without
The learned trial justice submitted the case to the jury upon the theory that their province was confined to an assessment of the damages. Without entering into details it may be said, that the connection of the appellants with the occurrence ivas such that liability, if it exist, attaches to all. The serious question is, whether they were liable as for a nuisance per se. I think they were. The act which they committed was unlawful and inherently dangerous to the community, and constituted a nuisance in law. A public nuisance may be defined as including anything which by its use or by its. permitted existence necessarily threatens or works annoyance, harm, inconvenience or danger to a community generally, and which by reason of its unlawful character may he remedied by public prosecution! Irrespective of its public or private nature a nuisance is well defined in the American and English Encyclopaedia of Law (Yol. 21 [2d ed.j, p. 682) as “literally an annoyance, and signifies in law such a use of property or such a course of conduct as, irrespective óf actual trespass against others or of malicious or actual criminal intent, transgresses the just restrictions upon use or conduct Avhicli the, proximity of other persons or property in civilized communities imposes upon Avhat would otherwise be rightful freedom.” And by section 385 of the Penal Code a public nuisance is defined as “ a crime against the order and economy of the State, and consists in unlawfully doing an act, * * * Avhicli * * * 1. Annoys, injures or endangers the comfort, repose, health or safety of any considerable number of persons; or * * * 4. In any way renders a considerable number of persons insecure in life, or the use of property.’,’ In the light of these definitions it seems obvious, that the use of a public highway in Adulation of Isav and in a manner intrinsically dangerous to the community must be. a nuisance as matter of Iuav.
By section 666 of the Penal Code, as in force at the time in question, it was made a misdemeanor for any person to operate an
The resolution under which the appellants acted was not an ordinance, and certainly was not a general ordinance. It ‘was not couched in the style decreed by the charter. ' It had no general scope or operation at .all. In precise and exclusive language it was and purported to be only a “ permission ” or “.privilege ” conferred upon the Automobile Club and upon no one else to conduct speed trials in the limited locality during the prescribed ‘ period of - time. It repealed no ordinances regulating the speed of vehicles, and it could manifestly have no fpree or effect as against -the injunction- of, the positive law of the State. Indeed the, claim' of the appellant the City of New Y-oi'k on the trial and oh-this appeal is that it was wholly without sanction of law and ulbra vires. Nor is there any claim that the use of the boulevard as a-speedway was under any law or ordinance, while the evident assumption on the part of the appellants that local legislation was necessary to authorize the speed contests is an indication pointing to the contrary/ It is true that by - subdivision 6 of section 3 of chapter 538 of the Laws of 1904 it is. provided that “ local authorities may, notwithstanding the other provisions of this section, set aside for a given time a specified public
In Landau v. City of New York (180 N. Y. 48) a similar resolution, passed by the board of aldermen of the city of New York, was held to be in substance and effect only a license or permit. In that case the resolution purported to suspend for a limited period the city ordinances forbidding the discharge of fireworks, and under its authority explosives were discharged úpon a public street in the presence of an immense throng in the very center of the city life, to the injury of the plaintiff. It was held that although the resolution did not, as in this case¿ expressly confer upon any one alone the privilege of violating the law, but conferred it generally upon political parties and associations during a pending campaign, it was tantamount to a municipal invitation to dó what was done and should be regarded in law as the granting of an unlawful permit for that purpose: The court refrained from a determination of the vexed question whether the act done under the unauthorized permit was a nuisance as matter of law, saying (p. 55) that “ fireworks in certain streets may or may not be a nuisance, according to the circumstances, which usually present a question of fact. * * * Fireworks exhibited on an extensive scale in a great thoroughfare, in the midst of a large city where a vast multitude of people is assembled, if not a nuisance as matter of law, may properly be found such as matter of fact.” There is an essential difference, however, between the permit granted in that case and the one granted herein. The permit there did not, so far as appears, transgress any general State law or assume to authorize the commission of a criminal offense. The entire control of the question of discharging fireworks within'the municipal jurisdiction was vested by charter in the local authority, and there was no element of criminality involved in the action of the licensees beyond the violation of city ordinances which the city itself had assumed to suspend for their personal benefit and to render temporarily inoperative as to the special class of privileged offenders.
The city is liable for the consequences of the unauthorized act of the board of aldermen.' The subject-matter of the resolution was within the jurisdiction of tlie board and it had ample 'power to-regulate and control the use of the highway within lawful limitations. As was said in Speir v. City of Brooklyn (139 N. Y. 6, 12): “ The ordinances, passed were not uli/ra vires, in the sense that' it, was not within the. power or authority of the corporation to act in reference to the subject under any circumstances. ' (See Dillon on Mun. Corp. § 963 et seq.*) It is the settled doctrine of the courts
It is urged by the learned counsel for the appellant, the Automobile Club of America, that the plaintiff’s injuries were not the proximate result of the excessive speeding ; that there was no necessary causal connection between the conduct of the contests and the erratic movements of the Baker machine, and that if there was it presented a question of fact for the jury and not one of law for the court. The same claim might be made with equal force had the plaintiff been run down in the highway. It is obvious that an automobile traveling at only eight miles an hour could run over a pedestrian, but that fact would be no defense to a wrongdoer speeding at the rate of sixty miles an hour, on a theory that no causal connection existed between the speed and the injury. There was no direct evidence of the reason why the Baker machine left the course and went into the woods, and the parties have assumed upon the
■ It seems clear to me that any other view, would necessarily ■ impose upon the plaintiff tlie burden of proving-affirmatively as a part of her cause .of action that the men in chai 'ge of the machine would hot have lost control of it if it had been running at the rate of only eight miles an "hour instead of sixty. This is something which neither she nor the jury could know, and.it,would be unreasonable to impose upon a plaintiff the establishment of a fact which rests wholly upon hypothetical conjecture. Had the accident resulted from the. uncontrolled or Uncontrollable movements of a machine traveling at the lawful rate the plaintiff would have been requirbd, of course, to prove negligence affirmatively; but, happening as it did in the commission of a criminal offense, the burden, was- on 'the perpetrators to prove, if it be possibly provable, that it would háve happened just the' same had they obeyed the law instead of violating it. ' What the plaintiff need not prove, in order to make out S ease, need not be submitted to a jury for determination.
The fact, that the plaintiff was a voluntary spectator of the con
It is possible that a different view might be taken had it appeared that the plaintiff knew or had any reason tó know the unlawful nature of the contests. There is, however, nothing in the case tending to indicate that, she was aware that they were not being conducted under the operation and sanction of a general ordinance or by virtue of a legal and valid permit. She did not participate in the contests in any way, and her mere presence in the woods cannot be regarded in a legal sense as contributing to the accident, assuming for the moment that freedom from contributory negligence is an essential factor in her ease,
The judgment and order should be affirmed.
Present — Hirschberg, P. J., Bartlett, Jenks, Rich and Miller, JJ.
Judgment and order unanimously affirmed, with costs.
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See 4th ed.— [Bef.