(dissenting in part). I concur for reversal of the judgment, but dissent as to the dismissal of the complaint and vote for a new trial.
Assuming that the grassplot inclosed by an eighteen-inch wire fence, extending out from the building line eight feet for a width of fifteen feet, five inches, may be deemed a “ bit of rus in urbe,” it is not a nuisance as a matter of law, but may be, as the jury may have found, a nuisance as a matter of fact. (McCloskey v. Buckley, 223 N. Y. 187.) Upon that basis, the case will be considered.
Sidewalks are for the absolute use of the public (Acme Realty Co. v. Schinasi, 215 N. Y. 495), subject, however, even without permit from the municipality, to certain incidental and necessary users by the abutting owner. (Robert v. Powell, 168 N. Y. 411.) Save that, an owner is under a duty to refrain from obstructing a sidewalk with objects which may be a source of danger, and *253the municipality owes a duty not to tolerate such obstructions. When the failure by either to observe such duty results in an accident, liability may follow. (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339.) The infant plaintiff had the legal right to step over the fence to retrieve his ball. (Tymon v. M. L. S. Construction Co., 262 N. Y. 161.) The presence of the fence required body movements by plaintiff which, if the fence had not been there, would not have been called into play. The accident would not have happened were it not for the obstruction (O’ Neill v. City of Port Jervis, 253 N. Y. 423), and liability ensues unless plaintiff was guilty of contributory negligence.
Cases are cited (King v. Village of Fort Ann, 180 N. Y. 496; Flansburg v. Town of Elbridge, 205 id. 423, and Horton v. City of New York, 213 App. Div. 172) holding that a municipality cannot be hable for injuries sustained by an individual consequent upon bis straying from an adequate and suitable roadway prepared for travelers. Those cases are not pertinent. The duty and obligation of the municipality were held to be limited to the part of the road which was graded for use by the public. In the case at bar, the entire sidewalk was dedicated to public use and, as already stated, plaintiff to retrieve bis ball had the right to enter the inclosure, which was an unlawful encroachment upon the rights of the public.
It is also proposed that the inclosure might not be a nuisance as to one who deliberately (which is not the fact here) came in contact with it, having present actual knowledge of its existence. Assuming that to such an actor the creator of a nuisance owed no duty, the rule proposed {volenti non fit injuria) is not applicable in view of the nature of the nuisance and the act of plaintiff with respect thereto. Cases are later considered, in each of which it was held that a municipality permitting an obstruction to be continued on a public highway was liable to a person injured thereby, though the latter had present knowledge of its existence and yet proceeded over it. Some of those cases are snow and ice cases, frequently referred to as negligence actions, but more accurately defined as actions in nuisance growing out of negligence. (McFarlane v. City of Niagara Falls, 247 N. Y. 340.) However, it should be noted that nuisance and contributory negligence' were considered as coexistent in Delaney v.. Philhern Realty Holding Corp. (280 N. Y. 461) and McFarlane v. City of Niagara Falls (supra).
*254The question of contributory negligence was a question of fact for the jury. The infant plaintiff was thirteen and one-half years of age. He sought to retrieve his ball which had gone into the inclosure and lay two or three feet from the front part encroaching on the sidewalk. He placed one foot over the fence, tried by leaning forward, but failed, to reach the ball. Then he raised his other foot to bring it over the fence, but did not raise it high enough to clear the fence, which he struck at the top, fell over, and was injured. It is fair to assume from the position in which he was when he struck the fence that he was looking forward and did not, as he said, see his foot catch the fence. His mind may have been divided between his movements and the ball, but the latter was the more important. In my opinion, it cannot be said that plaintiff in his attempt to reach his ball indicated such a want of ordinary care that no reasonable mind could draw a contrary conclusion. (Seyford v. Southern Pacific Co., 216 N. Y. 613.) (See Delaney v. Philhern Realty Holding Carp., supra, where it was held that, when the nuisance was based on an act which was unlawful, even if performed with due care, then something more than a mere want of ordinary care on the part of the plaintiff is required to prevent recovery.) A jury might properly find that, under the circumstances, the misstep was hot negligent. Not infrequently do adults make missteps, a common instance of which is falling up stairs. Such mishaps cannot be said to be negligence per se. It depends uponthe conditions under which they take place. (Feinman v. Rubenstein, 240 App. Div. 899; affd., 264 N. Y. 662, two judges dissenting; Mosheuvel v. District of Columbia, 191 U. S. 247.) From the record in the Feinman case in this court, it appears that a ball, with which plaintiff and his brother were playing, came to rest on the sidewalk near one of the pegs which was used to surround with string a grassplot between the paved part of the sidewalk and the curb. Plaintiff ran slowly toward the ball and, at a distance of seven or eight feet from the peg, he looked at the peg and at the ball, which was a few inches from the peg. He kept on running and tripped over the peg. It was held that the question of contributory negligence was for the jury.
A case, the facts of which are quite similar to those in the case at bar, is Mosheuvel v. District of Columbia (supra). Plaintiff fell over a water box in the sidewalk at the bottom of three steps which led from a brick-paved landing at the front of her house. There was no place of egress from the house to the street other *254Athan by these steps. The box was situated about midway of the steps and, in order to go from the lowest step to the sidewalk, it was necessary to go either to the right or to the left, which it would have been safe to do, or to take a step over the box and clear it. The box was about four inches square, projecting irregularly above the level of the street and was without covering of any kind. Its condition was known to the authorities and had been in the same condition about nine months before the accident. It was visible from the door of plaintiff’s house. It appeared that another lady had stumbled over the obstruction some time before the accident to plaintiff. Plaintiff herself had stumbled over it once before, although she testified she usually went to one side or the other and not over the box. On the day of the accident plaintiff was going out to visit a neighbor in an adjacent house. She testified that, from the time she left her door, she had the box in view a part of the time, and had it in mind all the time, and remembered its dangerous character; but on this occasion, she attempted to step over it instead of going to one side, did not take a sufficiently long step, and put her foot into the hole and was thrown, with the result that she suffered serious injury. It was held (three justices dissenting) that the question of contributory negligence of the plaintiff was for the jury. Pomfrey v. Village of Saratoga Springs (104 N. Y. 459); Evans v. City of Utica (69 id. 166) and Bullock v. Mayor, etc., of N. Y. (99 id. 654) are cited. It should be noted that in the Mosheuvel case plaintiff had her eyes forward lipoking in the direction of the obstruction, and also had it immediately in mind while she was going toward it, although in view only part of the time. In the case at bar, plaintiff had not only the obstruction but also the ball in mind, and his eyes at the time his left foot struck the fence were beyond it. The rule deducible from that case is that, if the jury find that plaintiff had reasonable cause to believe he could go over the obstruction in safety and used reasonable care in the attempt, he is entitled to recover. In the circumstances of this case, as already indicated, a jury might find, as the jury here found, favorably to plaintiff on both of these propositions.
That plaintiff had immediate present knowledge of the existence of the fence does not charge him with contributory negligence as a matter of law. (Feinman v. Rubenstein, supra; Mosheuvel v. District of Columbia, supra; Williams v. City of New York, 214 N. Y. 259; Evans v. City of Utica, supra; Twogood v. Mayor, *254Betc., of N. Y., 102 N. Y. 216; Pomfrey v. Village of Saratoga Springs, supra.) The cases, other than the first two, involved accidents growing out of the accumulation of snow and ice on the streets of municipalities. In the Williams case plaintiff had slipped on the sidewalk just before he fell the second time and broke his leg. He pursued his way along the icy sidewalk instead of crossing the street to a sidewalk which was entirely clear. It was held that this was not contributory negligence as a matter of law, but was a question for the jury. The other cases are to the same effect.
It is claimed that, because the occupation of the sidewalk had existed for at least ten years a permit by the municipal authorities to use the sidewalk as it was used would be presumed and, therefore, there could be no present nuisance. This question was neither raised by the pleadings (Clifford v. Dam, 81 N. Y. 52, cited in McFarlane v. City of Niagara Falls, supra) nor advanced on the trial. Had the claim of presumed permit been made by defendants, plaintiff might have submitted proof that no permit had been granted.
Appellant McLaughlin urges as a ground for reversal that she became the owner of the premises two years before the accident and that there was no proof that she had maintained that part of the grass plot and fence which intruded upon the sidewalk. The case was tried upon the theory that that appellant was maintaining that part of the grass plot and fence and no question to the contrary was raised on the trial. Had it been suggested, plaintiff would have had an opportunity of presenting proof that, during the period of her ownership, defendant maintained that part of the grass plot and fence.
However, there must be a reversal and a new trial. The court, in effect, charged the jury that the grass plot and wire fence were a nuisance as a matter of law. Although no exception was taken to the charge in this respect, the court was requested, and refused, to charge that “ The mere fact that the grass plot and the enclosure exists beyond the building fine does not of itself constitute an obstruction sufficient to charge the City with liability for that reason alone.” Thus, the court refused to charge that the obstruction was not a nuisance as a matter of law. This was error. Furthermore, if this be a case of nuisance as a matter of fact, there was a failure on the part of the court to charge the jury as to items to be considered in determining whether or not there was a nuisance *255as a matter of fact, such as the “ location and construction ” of the grass plot and fence, the extent of its intrusion upon the sidewalk, the part of the sidewalk available for public use, the extent to which the sidewalk was used, including the use by children as a playground, and any other facts and circumstances which would have a bearing upon the use of the sidewalk.
The judgment should be reversed and a new trial granted. In view of my conclusion that there should be a new trial, I concur in the determination of the appeal from the order.
Taylor, J., concurs with Lazansky, P. J.
Judgment reversed on the law and the facts, with costs, and. the complaint dismissed on the law, with costs.
Order, in so far as it denies the motion of defendant The City of New York for judgment over on its cross-complaint against defendant McLaughlin, affirmed, with costs to defendant McLaughlin against appellant The City of New York.
Appeal by defendant The City of New York from so much of said order as denies its motion to set aside the verdict and to grant a new trial dismissed, without costs.