On the evening of April 23, 1912, plaintiff’s intestate was riding in an automobile along North Main street in the city of Buffalo. This car was owned by the appellant Windsor Motor Oar Company and was being driven by one Fairman, an employee. At the place of the accident the trolley poles were set through the center of the street instead of upon each side. The automobile came into collision with one of these poles, causing the death of intestate. This action is brought against the motor car company, the railway company and the city by the administratrix, and she has had a general verdict against all the appellants.
In so far as the appellant motor car company is concerned the sole question presented by this appeal is the sufficiency of the evidence to charge that appellant with the negligence of Fairman, the driver. Olearly the evidence justifies the inference that Fairman was negligent in his management of this car.
The evidence upon this issue is fully discussed in the opinion *515of Mr. Justice Merrell. While such evidence was probably sufficient to require the submission of that issue to the jury, under the doctrine enunciated in McDonald v. Metropolitan Street R. Co. (167 N. Y. 66), yet the verdict as to this appellant should be set aside as against the weight of evidence.
As was pointed out in McCann v. Davison (145 App. Div. 522) the possession of this car by Fairman upon this occasion would suffice to raise a presumption that Fairman was then engaged in the business of the Windsor Motor Oar Company. Had the proof ended with that presumption no doubt the jury verdict should stand. Combated as it is by a silent record of any effort of demonstration or sale of the defendant motor car company cars, and by the positive evidence of the treasurer of the motor car company, even though that official be an interested witness, the presumption is insufficient to meet the burden of proof cast upon the plaintiff as to that fact.
McCann v. Davison (supra)presented substantially the same situation as to the weight of such proof compared with the presumption so raised, and, as did the court in that case, I conclude that this verdict, upon that issue and against that appellant, is against the weight of the evidence.
As against the railway company and the city, the action was submitted as one in nuisance rather than in negligence, and the propriety of such submission is the more serious question upon this appeal.
By chapter 479 of the Laws of 1866 the Legislature authorized the predecessor of the present companies to construct and operate a street surface railway in this and other streets. By section 12 of chapter 252 of the Laws of 1884 it further gave authority for the operation of this road by any power other than locomotive steam power, which might be consented to by the local authorities and by a majority of the abutting property owners, as provided in such act.
By the city charter then in force (Laws of 1870, chap. 519, tit. 3, § 8, subd. 8) the general control of the streets of this city and of the use of the same was vested in the common council of the city.
The authorization in the railway company (aided by the consent of the city and of the abutting owners) to construct and *516operate this railway as an electric railway necessarily implied a license to erect in the street, in some location, the poles and structures appurtenant to such a system. This license to erect such structures necessarily involved a choice of location, and such choice of location the Legislature had seen fit to vest in the common council by virtue of the provision of the city charter above referred to.
While this record is silent as to affirmative action by the council in the selection of this particular location chosen, yet we must presume that the city did so act, and that the location adopted was the choice of the common council. This conclusion is compelled by the provision of section 91 of the former Railroad Law (Consol. Laws, chap. 39 [Laws of 1890, chap. 565], as amd. by Laws of 1901, chap. 638; Laws of 1903, chap. 537; Laws of 1905, chap. 650, and Laws of 1907, chap. 156), as follows: “Whenever heretofore or hereafter a railroad has been or shall be constructed and put in operation for one year or the motive power thereof has been or shall be changed and put in operation for a similar length of time, such facts shall be presumptive evidence that the requisite consents of local authorities, property owners and other authority to the construction, maintenance and operation of such railroad or change of motive power have been duly obtained.” (See, also, Railroad Law [Consol. Laws, chap. 49; Laws of 1910, chap. 481], § 171.)
That the common council had authority to control the location of these poles, in observance of its conception of a proper location, seems clear. (City of Rochester v. Bell Telephone Co., 52 App. Div. 6; Barhite v. Home Telephone Co., 50 id. 26.)
It is sought, however, to apply to this case the so-called “Governmental Function” rule, as follows: It is said that jurisdiction over the streets rested primarily with the State, and having been acquired to a limited extent by the city, by virtue of delegated authority from the State, that in its selection of this location for the poles, the city acted as a representative of the State, and hence for an error in judgment in making such location, no one is liable.
The “Governmental Function” rule ¡has become firmly engrafted in our decisions. (Maxmilian v. Mayor, 62 N. Y. 160; Urquhart v. City of Ogdensburg, 91 id. 70; Lefrois v. *517County of Monroe, 162 id. 563; Wilcox v. City of Rochester, 190 id. 137; Berger v. Village of Solvay, 156 App. Div. 440; Gaines v. City of New York, Id. 789.)
The rule itself lies in no doubt. It is clearly stated in Lansing v. Toolan (37 Mich. 152), where Cooley, C. J., says:
“ In planning a public work a municipal corporation must determine for itself to what extent it will guard against possible accidents. Courts and juries are not to say that it shall be punished in damages for not giving to the public more complete protection; for * * * that would be to take the administration of municipal affairs out of the hands to which it has been entrusted by law. What the public have the right to require of them is, that in the construction of their works after the plans are fixed upon, and in their management afterwards, due care shall be observed; but negligence is not to be predicated of the plan itself.”
From the above cases it will be seen that, in its determination of a proper plan of procedure, the municipality acts in a judicial capacity, and for such acts it is not liable. It further appears, however, that even though the plan selected may be lawful in every particular, and affords no basis for relief to a person injured, yet the municipality and all others having dominion over the structure, owe to the traveling public an active duty of so managing, controlling and safeguarding the structure or improvement, within the limits of reasonable care, as to safeguard against injury therefrom. In such care, management and control thereof the municipality acts in a ministerial capacity, and may be charged with negligence for its failure to use due care in such particulars. (Berger v. Village of Solvay, 156 App. Div. 440; Gaines v. City of New York, Id. 789.)
In this case, the plaintiff’s complaint going only to the choice of location of these poles, and not to any failure to guard or light them as located, the application of the “Governmental Function ” rule, to the complete exoneration of the city and the railway company, might be permissible, except for the rule laid down by the Court of Appeals in Lambert v. Westchester Electric Railroad Co. (191 N. Y. 248), and asserted in the cases last above cited.
*518In the Lambert case the railroad company, with the assent of the municipality, located one of its trolley poles close to a driveway leading from a fire station to the street. Plaintiff was injured while attempting to board a piece of fire apparatus as it left the station, and which came into collision with this pole, by reason of the close proximity of the pole to the driveway. There the court conceded the lawfulness of the location, but distinctly held that a question in negligence was presented growing out of the continuation of the pole in that location, after notice of the danger attendant upon such location.
While it is difficult to reconcile this case with many of those above cited, yet, under its authority, we are compelled to hold that a question in negligence is or may be presented by the facts appearing in this record.
But this case was submitted as one in nuisance so far as the city and the railway company were concerned. Court and counsel agréed that such was the scope of the complaint, and the charge of the trial court limited the issue to one in nuisance.
Assuming, therefore, that the location adopted was lawful and within the statutory power and authority of the common council to adopt, and the presumption being that it did adopt such location lawfully, there could be no charge of nuisance founded upon such location. The location being lawful, neither the municipality nor the railway company could be. charged with maintaining a nuisance by adopting it.
As was said in Lambert v. Westchester Electric Railroad Co. (supra): “ In this case the defendant was authorized by the municipality to locate its trolley poles, and, therefore, they were not nuisances.”
The action having been submitted as against these appellants as one in nuisance, while the liability, if any, is in negligence, we must hold that error to be prejudicial to these defendants.
Submitted as an issue in nuisance, the contributory negligence of plaintiff’s intestate had no place in the case. Contributory negligence is not an issue in a nuisance action. Recognizing this rule, the trial court did not submit the issue of contributory negligence so far as the city and the railway company were concerned. Following that line of authori*519ties illustrated by Jefson v. Crosstown Street Railway (72 Misc. Rep. 103), such court did submit the question of reckless driving as a question of proximate cause. This, however, falls far short of submitting the issue of contributory negligence.
The trial court concluded that the contributory negligence of intestate was presented by the facts, for such court submitted that issue as to the motor car company.
As was said by the Court of Appeals in Francis v. Gaffey (211 N. Y. 47): ‘ ‘ This mistake in treating the action as one for a nuisance was particularly harmful to the defendant on account of the rule which excludes the consideration of the plaintiff’s contributory negligence in cases of nuisance.”
In any event, under the recent admonition of the Court of Appeals in Lamphere v. Lang (213 N. Y. 585) we cannot permit a recovery upon the theory of nuisance to be substituted for one in negligence, even though the proofs indicate negligence as the proper basis for recovery, rather than nuisance.
It is not my intention to hold that the facts disclosed by this record necessarily attribute negligence to the city and the railway company. I simply assert that if there be a liability as against such appellants, the same must be founded in negligence and not in nuisance.
The judgment and order appealed from should be reversed and a new trial ordered, with costs to abide the event.
Judgment and order affirmed, with costs.