Melker v. City of New York (190 N.Y. 481, 1908)

Vann, J.

This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the fault of the defendant. The complaint contains two counts, one alleging negligence, which was not relied upon at the trial, and the other a nuisance, as the ground of recovery. The action involves the liability of the defendant for an explosion of fireworks-on Madison avenue, adjoining Madison square, on the evening of election day, in November, 1902, after the board of aldermen had adopted a resolution suspending the ordinances relating to the discharge of fireworks, “ so far as they may apply to the meetings and parades of political parties or associations during the campaign of 1902.” The case is a companion to one recently decided by us relating to the same accident. (Landau v. City of New York, 180 N. Y. 48.) Upon the trial of that action it was not disputed that “the National Association of Democratic Cluhs, a political organization, had a parade on the evening of November 4tli, 1902, and its officers arranged to have a display of fireworks on Madison avenue between Twenty-third and Twenty-fifth streets in connection therewith.” Upon the trial of this action the allegation as to a parade by a political organization was disputed and evidence was given by both parties upon the proposition so that it became a question of fact for the jury. In other respects the leading facts were the same in both cases.

Madison avenue, at the point in question, “ is a wide street, bounded on the west by Madison Square, a park of seven acres, where, as well as in the adjoining streets, 75,000 people assembled to receive the election returns and witness the parade. They stood closely crowded in the park and on both sides of Madison avenue. The fireworks, consisting of mortars, bombs, rockets and the like, were arranged in six parallel rows in the middle and on the west side of the avenue, commencing about twelve feet from the curb. * * They filled the middle of Madison avenue from Twenty-fourth to Twenty-fifth streets. The bombs were fired from mortars made of steel tubing and were of a kind that had been frequently used before without serious results.” Between nine and ten o’clock in the evening some of the fireworks exploded from a cause not disclosed by the evidence and the plaintiff was injured.

The case was submitted to the jury under the instruction that in order to render a verdict for the plaintiff they “ must find that there was a meeting or a parade of a political party, or a political association, and that the fireworks were discharged in connection with this parade or meeting,” to which no exception was taken. The trial court further charged the jury that they should “determine whether or not the fireworks that were then exposed in the city of Mew York constituted a nuisance,” and that if they were a nuisance the defendant was liable, to which an exception was taken.

The plaintiff requested the court to charge that “fireworks placed upon the surface of a great thoroughfare, in the midst of a large city, where a vast multitude of people is assembled, and exhibited and discharged there on an extensive scale, as was done in this instance, constitutes a nuisance as matter of law.” The court refused to so charge and the plaintiff excepted.

The plaintiff testified that he went to the place in question for the purpose of seeing “ the election returns, the balloon and the fireworks,” but no instruction was given or requested as to the effect of his presence as a voluntary spectator of the display.

The jury found a verdict for the defendant, and the Appellate . ¡Division, after unanimously affirming the judgment entered accordingly, permitted an appeal to this court, and certified that in its. opinion “a question of law is involved which ought to be reviewed by the Court of Appeals.”

The rule of unanimous affirmance requires us to assume, for the purpose of this appeal, that the exhibition of fireworks in question was not held in connection with a meeting or parade of a political party or association, and that there was no nuisance as matter of fact. The only question requiring the expression of consideration is whether upon the conceded facts a nuisance existed as matter of law. Twice, quite recently, we have considered the q.uestion whether a display of fireworks in a public street in the midst of a large city is a nuisance, (Speir v. City of Brooklyn, 139 N. Y. 6; Landau v. City of New York, 180 N. Y. 48.)

In the earlier case the exhibition was held at the junction of two narrow streets in a compact part of the city of Brooklyn, and the damage was caused by fire resulting from the discharge of a rocket directly through a window of the plaintiff’s house. Chief Judge Andrews, speaking for the court, said : “ The finding of the trial judge that the use of the street for the discharge of fireworks constituted a public nuisance is amply justified in view of the circumstances. It has been decided in some cases that the discharge of fireworks in the streets of a city or village is a nuisance per se and subjects persons engaged in the transaction to responsibility for any injury to person or property resulting therefrom. (Jenne v. Sutton, 43 N. J. L. 257; Conklin v. Thompson, 29 Barb. 218.) It may be doubted whether the doctrine in its full breadth can be maintained. The practice of making the display of fireworks a part of the entertainment furnished by municipalities on occasions 'of the celebration of holidays or the commemoration of important public events is almost universal in cities and villages, and we are not prepared to say that this may not be done, and that streets and public places may not be used for this purpose under the supervision of municipal authorities, due care being used both as to the pila.ee selected and in the management of the dispilay, without subjecting the municipality to the charge of sanctioning a nuisance and the responsibility of wrongdoers.” The final conclusion announced was that the circumstances were such as to authorize the. trial court to hold the city liable for an “ unreasonable, unwarranted and unlawful use of the streéts,” and that such use “was properly found to constitute a nuisance.” The emphasis of the opiiuion rests on the location at the junction of two narrow streets and the imminent danger of fire owing to the contracted space and the inflammable nature of the materials used. (Speir v. City of Brooklyn, 139 N. Y. 6, 11.)

The later case involved the dispilay of fireworks now under consideration, where the spiace was ample, the danger from fire comparatively light, the management in charge of experts of high standing, the accident of unknown origin and of a kind not reasonably to be apprehended. Upon the first trial of that case the plaintiff had a verdict, which was reversed by the Appellate Division. (Landau v. City of New York, 90 App. Div. 50.) Upon the second trial there was a nonsuit and the Appellate Division affirmed, but we reversed and granted a new trial upon the ground, distinctly announced, that “ a case was made for the jury.” In discussing the subject we said: “ There is a distinction, well recognized by law, between the discharge of fireworks upon private property ánd in a public highway. There is also a distinction in this regard between highways, depending on their location, the extent of the traffic upon them and the danger involved in case of accident. Fireworks in certain streets may or may not be a nuisance, according to the circumstances, which usually present a question of fact. In the case now before us we have to do with a crowded street, near the center of the largest city on the continent, ‘ where any misadventure in managing the discharge would be likely to result in injury to persons or property.’ Fireworks exhibited on an extensive scale in a great thoroughfare, in the midst of a large city, where a vast multitude of people is assembled, if not a nuisance as matter of law, may properly be found such as matter of fact. This was so adjudged in the Sjpeir case, which is controlling in principle.” We held that “ while a municipal corporation is not liable for the failure to pass ordinances prohibiting the discharge of fireworks in the public streets, it is bound to exercise due care to. keep its streets in safe condition, and is liable for permitting dangerous obstructions or nuisances therein.” (Landau v. City of New York, 180 N. Y. 48.)

We intimated that the exhibition might be a nuisance as matter of law, but all we decided was that the nonsuit was improper and that the case should have been sent to the jury.A similar intimation ivas given in another case, but the actual decision was' that there was a question of fact as to the alleged negligence of the defendant. (Crowley v. Rochester Fireworks Co., 183 N. Y. 353.)

It now becomes our duty to decide whether the exhibition, which resulted in a frightful disaster, was a nuisance as matter of law.

For time out of mind the term “ nuisance ” has been regarded as incapable of definition so as to fit all eases, because the controlling facts are seldom alike, and each case stands on its own footing. We are not aided by the classification into public and private nuisances, because the difference between them does not depend on the nature of the thing done, but on the fact that one affects the public at large and the other a limited number only. The primary meaning of the word, suggested by its derivation, is that which injures, or, in the quaint phrase of ancient times, “ that which worketh hurt.” The injury may be to person or property, to health, comfort, safety or morality. It may lie a crime. (Penal Code, § 385.) Courts of high standing have held that a nuisance at law, or a nuisanceper s