The village of Warsaw is an incorporated village containing 3,300 inhabitants. Main street, its principal street, is six rods wide. In 1904 one Coloross owned a brick store of two stories with twenty feet frontage on the east side of that street, where he sold fruit, candies, nuts and popcorn. The front of the store contained plate glass windows. The sidewalk in front was ten feet seven inches in width and covered with a wooden awning supported by two columns resting on stone foundátíons at the outer edge of the walk. - ■
Coloross constructed the platform between these pillars' flush with the sidewalk and four feet wide, and on this located his peanut roasting machine and popcorn heater. The machine was mounted on wheels; those in front being two feet, and those in the rear two and one-half feet in diameter. The wagon was five feet in length and two in width. The popcorn case was two feet square and twenty-six inches in height. It was operated by steam generated by means of gasoline in a burner under the boiler, which held about three gallons of water with an automatic, feeder. There was a canvass top to the wagon and a tongue-was attached tó it so it could be moved readily. Its entire weight was about 450 pounds.
Coloross purchased this machine May 2, 1904, and used it daily up to the time of the explosion. The machine was placed on the platform every morning about seven o’clock and taken into the store in the evening about ten o’clock. Water was put into the boiler nearly every morning, and about a gallon of gasoline was consumed daily in its operation. It was in place every business day, but not constantly operated ; if a supply of the peanuts and popcorn was on hand steam enough was kept up to heat them. There W a steam wlflstlp on th§ tpapipiie which wa§ sounded occasionally
The trustees of the village knew that this roasting machine was in the street on the platform in front of the store from day to-day and that it was in operation. They passed the store occasionally, were the customers of Ooloross more or less, were about the streets often, and that this machine was operated by-steam and was for roasting jieanuts was apparent to any one who saw it.
The peanut roaster was not an obstruction to public travel either upon the sidewalk or in" the street. The platform on which it stood was laid over a brick pavement which sloped from the sidewalk to the gutter. It occupied the space between the sidewalk and the paved gutter, no part of the machine was in the street or liable to be hit or touched by passing vehicles. In this respect it differs entirely in character from the obstructions found in the authorities relied upon to support the plaintiff’s contention. In the Wells case, most relied upon (Wells v. City of Brooklyn, 9 App. Div. 61), a large showcase of wood and -glass had for several years stood upon the curb line of the street, originally fastened by means of an iron brace to an awning post. The day before the accident- the case was knocked over by a collision with a truck and torn from its fastening. It Was put back in position but not fastened to the post in-any manner. The next day the case was blown down by't-he wind and the plaintiff was hurt. The city was held liable upon the ground that the showcase being permanent in character, continuously maintained and unauthorized, constituted a public nuisance, which it was the duty of the city to remove as soon as knowledge of its existence could fairly be attributed to it; that the officials of the city, in the exercise of ordinary prudence, ought reasonably to have anticipated that such an incumbrance was likely to be loosened by contact with vehicles and thus become dangerous. Ho sinch condition could have arisen from the presence of the Ooloross machine in the place where it stood. It was not on the sidewalk or in the street where vehicles or pedestrians were liable to come in contact with it. It was movable, not a fixture; with an attendant in charge through the day who could move it if in the way at any time,, and at night it was taken into the store. Eliminate the explosive character of the machine from the case, "and the idea of its "being an
Upon the question of the defendant’^ liability in this case, Hunt v. Mayor (109 N. Y. 134) seems to be directly in point.
The general rule there laid down regarding the liability of municipal corporations for injuries occasioned by, obstructions in the streets, deduced from the case, is stated in the syllabus as follows :
“ There is no absolute guaranty or undertaking on the part of a municipal corporation that its streets or other constructions shall at all times and under all circumstances be in a safe and próp.er condition. Its obligation and duty extend only to the exercise of reasonable care and vigilance, and to create liability, willful misconduct or culpable neglect must be established.
“ The mere existence of a defect, rendering a street unsafe, from which a traveler sustains an injury, where the defect was not created by the act or consent of the municipality, does not, independent. of negligence, establish a culpable breach of duty on its part.”.
The action was brought to recover damages for injuries received by plaintiff on the 27th day of January, 1883, while lawfully passing along Broadway, in the city of New York, by an explosion at one of the manholes of the American Heating and Power Company, at the junction of Broadway and Maiden lane.
The language of the court in reaching its decision, by Andrews, J., is as follows: t£ The fact of the explosion is itself a demonstration that the street was at the time in an unsafe and' dangerous condition, and the only question is whether upon the evidence, the city is or may be liable for the injury suffered by the plaintiff. The duty-cast upon a municipal corporation to keep its streets in a safe condition for travel is not absolute, so as to impose liability upon the corporation in every case where a traveler, without fault on his part, sustains injury from a defective street. . Its liability depends, in all cases upon negligence, that is, upon the fact whether it has omitted to exercise due care, under the circumstances, in their maintenance or reparation. The mere existence of a defect from which a travelér sustains injury does not, independently of negligence,- establish a culpable breach of duty on the part of a municipality. The cases of injuries from obstructions placed in streets by third persons without the consent of the municipality, of which it has no -notice, are illustrations of the principle, that the liability of a municipality for the unsafe condition of its streets rests upon the basis of negligence, and not upon an obligation assumed or imposed bylaw to keep the streets at all times and at all hazards in an absolutely safe condition for travel. Where an injury happens from the defect of a roadway itself, or from a dangerous condition of the street created by the act or consent of the municipality, negligence, as ip
“ It follows that negligence on the part of the city was an essential element of the plaintiff’s case, and it was incumbent upon him to establish it, or to give evidence from which it could be inferred, before he was entitled to have the question submitted to the jury.”
Within the rule thus laid down it was incumbent upon the plaintiff here to prove that there was reasonable ground for apprehension that an explosion would occur in the ordinary use of the machine, and injury therefrom result to passers-by on the sidewalk or in the street. If the plaintiff was entitled to a presumption of negligence, arising from the happening of the explosion, evidence that .machines of this kind were in common use in the streets of other cities and villages, and the defendant’s trustees had never heard of one of them exploding, offered by the defendant to rebut the presumption, should have been received. '
It was error, therefore, for the court to hold as matter of law that the maintenance of the peanut roaster by Coloross constituted
- The judgment should be'reversed.
McLennan, P., J., concurred'; Kruse, J., concurred,, in an opinion ; Spring, J., dissented, in an opinion, in which Williams, J., concurred. ,