(dissenting). Inviting and encouraging ball games to be played on the diamond in question was not the negligence pleaded. Overlooking that variance, however, a question of fact arose under the evidence only because the law both as to negligence and negligent nuisance was erroneously given to the jury in the charge of the trial judge. Conduct, to be negligent, must involve “ in the thought of reasonable men an unreasonable hazard."
(Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 341.)
On highways some degree of danger always exists. “ Street risks are a by-word in law as well as life." (McFarlane v. City of Niagara Falls, 247 N. Y. 340.) Whether the hazard here was unreasonable depended not alone upon the propinquity of highway and diamond. '•'Locality, surroundings,"methods, the degree of danger, and the custom of the country are the important factors." (Melker v. City of New York, 190 N. Y. 481, 489.) The ordinary volume of traffic on this parkway would have an important bearing on the degree of danger to be anticipated. The evidence is silent on the point. *601Playgrounds and baseball diamonds similarly located with reference to roads exist under the customs of the country and as matter of common knowledge in almost every city and village. I think the question of the city’s negligence should be submitted on adequate proof and under proper instructions to another jury.
Taylor, J., concurs.
In each case: Judgment affirmed, with costs.