The plaintiff was lawfully on the sidewalk' and "he had the right to assume that it was safe for him to pass .over it. This assurance *625of safety existed because the defendant was charged with the affirma. tive obligation to keep the street in its entirety open for public travel. (Cohen v. Mayor, 113 N. Y. 532, 535 ; Callanan v. Gilman, 107 id. 360.)
These are fundamental propositions. It has bécome also one of the settled propositions in this State that a permanent obstruction in a stréet or highway interfering with the convenience of the public or imperiling the safety of the traveler is an unlawful obstruction' • and within the definition of a public nuisance. (Davis v. Mayor, 14 N. Y. 506, 524; Hume v. Mayor, 74, id. 264, 270 ; Landau v. City of New York, 180 id. 48.
The rule, which has ever since been adhered to, was thus succinctly announced by Chief Judge Demo in Davis v. Mayor (14 N. Y. supra, 524): “ Any permanent or habitual obstruction in a public street or highway is an indictable nuisance, although there be room enough left for carriages to pass, and it is not less so though the thing which constitutes the obstruction is not fixed to the ground, but is capable of being and actually is removed from place to place in the street.” And the municipality whose agents license or acquiesce in the appropriation of the street or highway for an unlawful use, or in putting an obstruction therein amounting to a nuisance, or fails, after notice of such obstruction, to remove the - same, is responsible in damages to a traveler injured in consequence of such appropriation of the street. (Cohen v. Mayor, 113 N. Y. 532, supra; Wells v. City of Brooklyn, 9 App. Div. 61; Rehberg v. Mayor, 91 N. Y. 137.)
In Cohen v. Mayor (supra) the evidence showed that a grocery wagon was standing in front of a store on a street in the city of Hew , York. The thills were held in an upright position by a string, and the wagon had remained in this place and in this condition for several months when not in use by its owner. The street was narrow, and an ice wagon passing along it collided with the grocer’s wagon, causing the thills to drop and strike the plaintiff, who was on the sidewalk in front of the store. The plaintiff sued the city, charging it with maintaining an unlawful obstruction in the street. The municipal authorities had given-a permit to the owner of the wagon to leave it in the street, with the thills tied up, receiving therefor two *626dollars. The trial court directed a verdict for the defendant, which was affirmed by the General Term (43 Hun, 345), but reversed by the Court of Appeals. The court said : “ The storing of the.wagon in the highway was a nuisance. The primary use of a highway is for the purpose of permitting the passing and repassing of the public, and it is entitled to the unobstructed and uninterrupted use of the entire width of the highway for that purpose. * * * It is no answer the charge of nuisance that, even with the obstruction in the highway, there is still room for two or more wagons to pass,, nor that the obstruction itself is not a fixture. .If it be permanently, or even habitually in the highway, it is a nuisance. The highway may be a convenient place for the owner of carriages to keep them in, but the law, looking to the convenience of the greater number, prohibits any such use of the public streets.” And the city was held liable because it had “ assumed to authorize the erection and continuance of a public nuisance.”
I realize that these cases are not identical with the one we are considering. We cite them for the purpose of showing the prevailing trend of the courts in holding that the street to its full extent is for the public; that any obstruction impeding travel or endangering the safety of the traveler is a nuisance; and that the city permitting such obstruction is chargeable with maintaining a public nuisance. . .
But Wells v. City of Brooklyn (supra) is an authority more akin to the present one. The obstruction in the street there involved was a showcase close to the- curb line and which for years had been fastened by a brace to an awning, A truck ran against the case severing it from the brace, The next day the case was blown upon the plaintiff, who was upon the sidewalk, seriously injuring her and she sued the municipality.
The trial court in charging the jury said the city was not liable unless the officials of the city ought reasonably to have anticipated that the showcase was likely to be overturned by a passing vehicle, and thus become dangerous; and the jury rendered a verdict for - the defendant, and the judgment was reversed on appeal on the . ground that this instruction was erroneous. .The court held that the showcase when fastened to "the awning “was an unlawful obstruction in the street, which it was the duty of the defendant to *627remove. It was permanent in character and continuously maintained, and being wholly unauthorized, it constituted a public nuisance.” "
The court distinctly repudiated the rule adopted by the trial judge already mentioned, and added: “ Time enough had not elapsed between the collision which loosened the showcase and the injury to the plaintiff to impute notice to the municipal authorities that it was no longer secured. It is plain, therefore, if the city is liable at all, that its liability arises out of the fact that it permitted the existence of an obstruction in the highway amounting to a nuisance, which, by reason of the act of another person lawfully using the highway, was rendered dangerous to the plaintiff, and inflicted upon her the injuries of which she complains. * * * When a municipality^ tolerates for years the continuance of an unlawful obstruction in a public street which it is in duty bound to remove therefrom, its action is distinctly wrongful. It must bear the natural consequences of that wrongful action. Any unlawful obstruction in a public highway may prove dangerous to travelers, either from the manner in which it is originally erected, or by reason of accidental or other interference with it by strangers to its erection. Notice to the •municipality, therefore, of its presence is notice that the safety of public travel is endangered or liable to be endangered. If, under such circumstances, the obstruction is allowed to remain the municipality takes the risk.”
An appeal was taken to the Court of Appeals but the appeal was dismissed on the ground that the form of the order did not enable that court to- review it. (158 N. Y. 699.) Upon a retrial the court directed a verdict for the plaintiff, except as to the amount of damages, which were assessed by the jury at $10,000, and the judgment was affirmed by the Appellate Division. (45 App. Div. 623. See, also, Leary v. City of Yonkers, 95 id. 126, 130.)
The peanut roaster had been in the street from May second to August sixteenth, the day of the accident. It was in a conspicuous, part of the village, readily visible to every passer-by, and its presence during all that time was known to the trustees and the village officials. It. was far more of an obstruction and fraught with greater tendency to do injury to people upon the sidewalk than the showcase fastened to the awning. The liability of an explosion *628from an engine and boiler forming-a part'of a portable machine is always present and may be anticipated at any time. It was an 'unusual coincidence of events that tore the showcase from its moorings and subsequently, by the action of the wind, threw itrupon the plaintiff, and which constituted the liability in the Wells- case. But in each case the thing in the street was in and of itself a nuisance, and, for that reason, the municipality was responsible for the injuries inflicted by it. / .
It does not seem to inc that Hunt v. Mayor (109 N. Y. 134), discussed in one of tlie prevailing opinions, is decisive of this case. .A steam heating company, pursuant to legislative authority and the ordinance of the common council, had laid mains and pipes under the streets for the transmission of water and steam. A gas main was already in the street and the two lines crossed at. the junction of two streets where a manhole was made by the heating and power 'company of bricks and cement with two iron covers. When the steam was let in the pipes the ground became very warm and the lead in the gas pipes softened, causing them to leak. An explosion occurred at the manhole and the plaintiff, who was .passing-along the street, was injured. The explosion apparently occurred from the accumulation of illuminating gas in the manhole, which, in some way, became ignited.
The heating company was authorized to use the streets, but it was claimed the city should have determined the manner in which the mains should be laid and placed with reference to the gas line. There was no proof that they were laid or located improperly, or that they'could have been placed in any different way from the plan adopted, “ or that a manhole was not a proper arrangement, or that there was any lack of care in conducting the work.”.
The project was a new one, and the accident which occurred, the court said, could not have been apprehended. The municipality was charged with negligence, but the proof did not substantiate .the charge. It affirmatively established the contrary. The court added “ So far as appears, all the precautions which at' the time seemed to be necessary were taken to make, the work safe and secure.”
Even if the trustees of the .defendant did not know the machine was dangerous they should have removed it, for it was an obstrue. tian upon the street. As was. said in Rehberg v. Mayor (91 N. Y. *629137, 144): “ If the city omitted to act with reasonable diligence after notice of an unlawful obstruction in the street,- which might occasion injury to persons lawfully thérein, we think it would be no defense that it may not have known that the obstruction was in fact dangerous. The duty rested upon'the city to remove the incumbrance; and if the incumbrance was dangerous in fact and resulted in injury to the plaintiff, the city is, we think, responsible, although it had not by actual examination and inspection ascertained its dangerous character.”
Several of the- cases charging municipalities with responsibility for damages incurred by reason of obstructions in the street arose where the authorities by some affirmative act had licensed or permitted the obstruction, notably in Cohen v. Mayor (113 N. Y. 532, supra) and Landau v. City of New York (180 id. 48, supra), and the counsel for the appellant endeavors to make that fact potential-in distinguishing them from the present case.
He correctly states that. the trustees of the defendant never granted the privilege to Coloross to place his engine and boiler in the street. The' streets of a village “ are under the exclusive control and supervision of the board of trustees ” (Village Law [Laws 1897, chap. 414], § 141; Nelson v. Village of Canisteo, 100 N. Y. 89), and they are charged with the affirmative duty of keeping them reasonably safe. (Pettengill v. City of Yonkers, 116 N. Y. 558 ; Leary v. City of Yonkers, 95 App. Div. 126, 129.)
This is no negative burden. If so, the municipal authorities by shirking their duties by inaction might always shelter the municipality from responsibility. If that rule were to obtain, shiftless inert trustees wo'uld be preferable to the vigilant and capable. The principle adhered to by the counsel prevails where the municipal authorities in their discretion have not passed an ordinance relative to the use of the streets, as in Howard v. City of Brooklyn (30 App. Div. 217), or have not invaded the premises of an. individual to abate a nuisance as in Leonard v. City of Hornellsville (41 id. 106).
The enactment of an ordinance pertains to the legislative function of. the trustees requiring discretion, and the erroneous exercise of judgment or the omission to exercise it at all in that regard may not cast legal blame upon the municipality if damages accrue.
*630But where there is an obvious persistent encroachment upon the ' street which is a public nuisance per se, either impeding the use of the Street to some extent or imperiling the travelers upon it, the trustees may not ignore it' and by failing to act at all shield the ■municipality from responsibility. As was said in Ehrgott v. Mayor (96 N. Y. 273 ) : “ The city must act through officers, and agents, and it is for*the Legislature to determine what powers and duties shall be devolved upon them. It matters not how ample or exclusive their powers may be, nor how independently they .may act nor how they- are chosen. If. they are provided by law and authorized to discharge a corporate duty which rests upon- the municipality, then in the discharge of that duty they represent the municipality and it may be chargeable with their misfeasance and nonfeasance.”
The removal of a nuisance in a street is a ministerial act, instead of the kind denominated as governmental. If a threshing machine in full blast is kept running for a week on Main street in the city of Bochester or is stored there night after night and a traveler is injured by colliding with it at night or by reason of his team running away through fright, the city cannot avoid liability on the ground that no duty was imposed upon its officials to remove it. They would not be expected to grope through the provisions, of the city charter to ascertain whether it contained a section permitting the removal of the nuisance, nor would they be called upon to enact an ordinance before getting rid of the illegal obstruction.
The trustees had no authority to grant a license to Ooloross to place this peanut roaster in the street. They would not be expected to transcend their authority. If they knew of it and acquiesced in it and failed to remove it, the village is liable. T'o hold that the municipality is not- responsible'because the trustees did not by ordinance or license give Coloross permission to cumber the street unlawfully with this machine, but did tolerate and assent to it, is too narrow a rule of liability for a municipality. That doctrine . would invite laxity in the improper use of the streets.
The court, as in the Wells case, determined as matter of . law that the peanut roaster in the street was a nuisance and that the defendant was liable in permitting it to remain there. Ordinarily the’ jury are permitted to decide those questions, but the evidence, *631without dispute, showed that this machine was in the main street in daily operation for more than three months. Its general character was apparent. The most casual observer would notice that it contained an engine and boiler. The president and the- trustees of the village, and its street commissioner knew of its location and operatian. Manifestly it was an illegal obstruction.
Whether the trustees had reason to foresee that it would explode or that it was e' inherently dangerous ” was unimportant if the thing was a nuisance. Three months’ knowledge of its use assuredly was adequate to give the trustees ample opportunity to comprehend the character of the obstruction and to cause its withdrawal from the street.
■ The injuries to the plaintiff were within the rule of proximate cause. (Cohen v. Mayor, 113 N. Y. 532, supra; Murphy v. Leggett, 164 id. 121, 126; Wells v. City of Brooklyn, 9 App. Div. 62, supra.)
The machine, the nuisance, in its. ordinary operation exploded and did the injuries. A person was required to supply the water and gasoline and to keep the machine going, but his act in either furnishing these supplies or in omitting to furnish them properly is not the intervening cause which relieves the defendant.
The defendant endeavored td show that similar machines had been in use in other villages and cities, but the evidence was excluded. We think the ruling correct. Possibly, if the charge were negligence, that class of proof might be competent, but where the municipality is maintaining a nuisance, the fact that other villages are committing the like offense is no defense. (21 Am. & Eng. Ency. of Law [2d ed.], 690.)
The judgment and order should be affirmed, with costs.
Williams, J., concurred.'
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law and fact.