Defendant maintains a public playground on the south side of High street in the city of Buffalo. On the same side of the street and next west of the playground there is situate a one-family frame house with a driveway and garage on the west side of it and a narrow space about two feet wide between its east side and the west line of the playground lot. Across the *340whole front of the house there extends an open porch. Between the two lots the city maintains a wire fence about four feet high. Sometime between seven and seven-thirty o’clock on the night of August 20, 1928, plaintiff stepped out of a door in the west side of the house and walked along the driveway until she was opposite the west end of the porch when she was struck on the right side of her head by some flying object and severely injured. At this time there were two boys playing catch on the playground, one Wearing a catcher’s mit, standing with his back to the fence, before mentioned, at a point opposite the porch, and the other wearing a. pitcher’s glove standing at a point in line with the porch and his companion, a short distance away. They Were first observed so occupied at about a quarter before seven o’clock. When plaintiff was struck the boys immediately ceased their playing and came to her assistance. In the course of their game the ball was seen to go over the fence and hit the house several times. At the time of the accident there were persons standing on the porch who observed something whizzing by them and heard it knock just as plaintiff was bit. Another person saw the ball there just after plaintiff was struck. It appears that while the two boys were playing catch, Miss Crehan, a person accustomed to supervise the playground, was in attendance and was sitting in a chair about sixty feet from them. Upon proof of these facts the court at the end of the plaintiff’s case granted defendant’s motion for a dismissal of the complaint and a nonsuit on the ground that there was a failure of proof of negligence against the city, or that the object which struck plaintiff came from the playground. In this I think the learned court fell into error, the evidence presenting questions of fact and the inferences to be drawn from facts positively proved (Warner v. N. Y., O. & W. R. Co., 209 App. Div. 211, 213) as to the cause of the accident and defendant’s negligence which should have been submitted to the jury.
The establishment of a playground is not a public duty imposed upon a city and it does not act as an agent of the State when it avails itself of the privilege of maintaining it. In such case it acts as a legal individual voluntarily assuming a duty for the benefit of a locality, and the undertaking of such a duty includes the taking on of the burdens incident thereto. (Augustine v. Town of Brant, 249 N. Y. 198.)
In the maintenance and operation of a playground a city is required to use care to prevent injury to children, who frequent it and participate in the games and pastimes for which provision and opportunity are there found, from dangers reasonably to be anticipated. It owes the same duty to persons rightfully using a drive*341way, path, way or place, upon private premises which are located so close to a playground that the playing of any game or the practice of any other activity thereon will render the proper exercise of such uses dangerous.
The city chose to maintain this playground and provided a supervisor who was in attendance. Whether she observed the boys at their game, situated as they were, so close to this house, and the flight of the ball over the fence and against the bouse, and Whether or not she was negligent in failing to stop it or request the boys to go to some other part of the playground for their game were questions of fact which should have been submitted to the jury. The mere sight of the boys, located and engaged as they were, would at once impress one with the imminent danger it brought to persons occupying or likely to be on the porch of the house so near by. Especially would this be true if such a one were in charge of the playground, with the duty to observe and know what was there going on, and to apprehend and guard against dangers likely to occur, thereby imposed. In this case the supervisor of the playground had abundant opportunity, in the exercise of reasonable care, to have seen and to have at once corrected the condition. An instant of perception and Warning would have avoided the accident. Thus the questions of time and notice to the city are fully covered.
Municipalities as Well as courts are bound to know that the game of baseball in its varied and well-known forms and processes is and ever will be played on every available playground by the boys and ofttim.es girls of America. That it involves certain dangers which require regulation and supervision in order that harm may not come to persons, who, like this plaintiff, are put in positions of danger by it, without negligence on their part, is equally obvious. In the circumstances of this case, it seems to me that it is for a jury to say whether or not the city failed in its duty to the plaintiff, and, if it did, and the injuries suffered by her were caused by its negligence, it is hable. (Van Dyke v. City of Utica, 203 App. Div. 26; McCarton v. City of New York, 149 id. 516, 519; Lamm v. City of Buffalo, 225 id. 599.)
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Judgment affirmed, with costs.