The plaintiff showed that he was lawfully using the street and that his automobile was wrecked without any negligence on his part. A proximate cause of this accident was the presence of a pile of stone in the street placed there by the defendant and the defendant is liable for the resultant damage if the pile of stone constituted an unlawful obstruction of the street. Sweet v. Perkins, 196 N. Y. 482. The defendant, by his contract with the city, had the consent of the city authorities to place the pile of stones there. At the same time that right was qualified by an express condition that “ suitable and sufficient lights shall be put up and kept lighted from sunset to sunrise ” and by an implied agreement on defendant’s part to perform the act permitted with due care for the safety of the public. For a violation of duty in this regard the defendant is liable. The rule of law applicable to these conditions is authoritatively announced in the case of Babbage v. *50Powers, 130 N. Y. 281, as cited by Mr. Justice Bijur. Under the authority of that and similar cases, the rnle is well established-that, while an obstruction in a street, which would ordinarily be a nuisance, becomes lawful if authorized by proper authorities provided the express and implied conditions of the license are complied with, it remains a nuisance unless these conditions are complied with. It follows, in my opinion, that the defendant cannot escape liability unless' the evidence shows that these conditions have been complied with. In other words, if the defendant has failed to place suitable and sufficient lights on the obstruction of stones, it constitutes a nuisance for which the defendant is liable.
The question in this case, therefore, is not whether the defendant was guilty of any negligence which contributed to the accident, but whether he was guilty of such negligénce as would show a failure to comply with the implied and express conditions of his license. If such a failure has been shown, then in accordance with the rule of law laid down in Babbage v. Powers, supra, the license can afford the defendant no protection and the pile, of stone constitutes a nuisance for which the defendant is liable.
This case, therefore, presents only a single question of fact, viz.: Was the defendant negligent in this regard? There is a conflict of testimony as to whether there was any light placed on this particular pile of stones or on any pile within seventy-five feet of it. The evidence also shows that there was an arc light distant thirty yards from this pile but the plaintiff testifies that he could see only fifty or sixty feet and that he could not see this pile of stone, though he was looking in that direction. Upon this evidence, it seems to me that the trial justice could reasonably hold that the defendant did not comply with the conditions of *51the license and that as a consequence the license afforded him no protection and that, therefore, he was guilty of creating a nuisance in the public street. Judgment should be affirmed, with costs.
Judgment reversed and new trial granted, with costs to appellant to abide event.