[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 466 The plaintiff has lost both of his eyes by reason of the explosion of the boiler of a patent steam peanut roaster and popcorn heater on a public street in the village of Warsaw. This machine was supported by wheels, and the owner was permitted by the trustees of the village to maintain it stationed in the street in front of a shop where he vended fruit and candy. It had obstructed the highway at this place for many weeks before the accident, to the personal knowledge of all the village trustees, a majority of whom admitted upon the witness stand that they were aware that such a machine was likely to explode unless properly constructed and carefully operated. For their negligence in sanctioning its maintenance there under these circumstances, the village municipality has been held liable in the present action to the extent of $10,000 damages awarded by the jury to the plaintiff.
We think that this judgment must be sustained upon the authority of Cohen v. Mayor, etc., of New York (113 N.Y. 532) and the two cases of Jane and Samuel Wells v. City of *Page 468 Brooklyn (9 App. Div. 61; appeal dismissed, 158 N.Y. 699;45 App. Div. 623; 21 App. Div. 626; affd., 162 N.Y. 657). The presence of the peanut roaster in the public street, stationed there as it was from early morning until late at night, undoubtedly constituted an unlawful obstruction, just as the grocery wagon did in the Cohen case and the showcase in theWells suits. It is argued that its obstructive character was not the cause of the injury to the plaintiff, which was attributable rather to its explosive character. In Cohen v.Mayor, etc., of N.Y. (supra) the injury was due to the fall of the thills of a grocery wagon stored in the street, and it was urged that if the thills had not been negligently tied up they would not have fallen and killed the plaintiff's intestate. To this Judge PECKHAM answered that that was simply the way in which the accident occurred, by reason of the presence of theobstruction. "There is always reasonable ground for apprehending accidents from obstructions in a public highway, and any person who wrongfully places them there or aids in so doing, must be held responsible for such accidents as occur by reason of their presence. The obstruction in such case must be regarded, within the meaning of the law on the subject, as the proximate cause of the damage." (p. 538.)
The trial judge accordingly charged the jury that the presence of the peanut roaster in the village street was the proximate cause of the injury to the plaintiff, and that the peanut roaster was wrongfully in the highway; but he also distinctly instructed them that these facts did not suffice to render the defendant liable. They were told that the question for them to determine was whether the village officials, charged with the duty of keeping the streets clear from dangerous obstructions, knew or ought to have known, under all the circumstances, that there was danger of an explosion and consequent danger to travelers and passers along the street. If such was the case the village was liable for the consequences of the explosion; but if it was "a matter that could not reasonably be anticipated by prudent men" then the plaintiff's case failed. *Page 469
The vital issue was thus correctly submitted to the jury. The learned judge adhered substantially to this view of the law in dealing with the defendant's numerous requests to charge and we find no error either in passing upon these requests or in the principal instructions given which would justify a reversal. The judgment must, therefore, be affirmed.
It should be distinctly understood that the principle underlying the affirmance of the judgment in this case has no application to vehicles in their ordinary and reasonable use as such. The roadway of every public street is designed to be used by vehicles in passing and repassing from place to place, and vehicles may be halted either for the convenience or pleasure of their owners or occupants as they are customarily employed in the community. Familiar instances are the waiting of a doctor's carriage during his attendance upon a patient or the halting of an automobile before a residence or place of business. No one would think of treating even a prolonged occupancy of the street under such circumstances as an unlawful obstruction so far as to charge the municipality with liability for not causing its removal. It is only when the occupation is so protracted as to possess an element of permanency that its obstructive character makes it the duty of the municipal authorities to remove it. This steam peanut roaster was not in any true sense a highway vehicle merely because it rested upon wheels and could thus be readily moved from place to place. It was utilized as a permanent stand at which peanuts could be roasted and vended in a public street.
CULLEN, Ch. J., HAIGHT, VANN, HISCOCK and CHASE, JJ., concur; WERNER, J., dissents.
Judgment affirmed, with costs. *Page 470