Houghton, J.:
The city of Albany entered into a contract with the defendant to give an exhibition of fireworks in one of its public parks. The plaintiff was one of the numerous spectators and chose her position in á street adjacent to the park and at no great distance from the place of firing.. When the exhibition had 'been in progress about half an hour and several large rockets had been fired, without damage, the plaintiff while gazing upward was hit in the face" by thex stick of an exploded rocket and severely injured.
At the close of the plaintiff’s evidence the court granted the defendant’s motion for a nonsuit, and from the judgment entered thereon the plaintiff appeals.
The appellant urges that thé defendant was guilty of a nuisance per se, in discharging fireworks in such proximity to a public highway as to be dangerous to persons traveling thereon,.and was, therer fore, liable irrespective of any question as to its negligence in the manner of doing it. We do not think this is so. The display was not unlawful of itself. The authorities of the city of Albany had sanctioned and directed that the display take place in its park. Besides, the plaintiff was not, in a legal sense, using the public high- ’ way for the purposes of travel. She selected her position as a place of View. She was not a passer-by injured by an unforeseen, unlawful act. We do not mean ,to be understood that she was guilty of negligence, as matter of law, in standing as. she did, but her legal status was changed so that she cannot invoke the principle of protection accorded to a mere passer-by injured by the discharge of fireworks in such proximity to the public highway as to be dangerous. (1 Thomp. Neg. [2d ed.] § 791.)
The principle upon which the defendant was held liable m Speir v. City of Brooklyn (139 N. Y. 6) was .quite different from that involved in the present case. There fireworks were discharged in the street and a rocket entered a window of plaintiff’s house and set [15] it on fire. In the course of the opinion, however, the court in that case says: “ 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. * * * 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 place selected and in the management of the display, without subjecting the municipality to the charge of sanctioning a nuisance and the responsibility of "wrongdoers.”
In the well-considered case of Dowell v. Guthrie (99 Mo. 653) it was held that the discharge of fireworks from a veranda in front of the second story of a court house in the populous part of a small city, from troughs so arranged that the rockets would pass over the assembled people, who were there for the purpose of witnessing the display, was not of itself an unlawful or wrongful act; and that a spectator injured under such circumstances occupied a different position from one injured while making the ordinary use of the highway for the purpose of travel.
It is manifestly the rule that where the person injured is not at the time in the ordinary public use of the highway for the purposes of travel, but is attending a celebration or exhibition permitted by municipal authorities as a voluntary spectator, the question of the liability of the person discharging the fireworks depends upon whether there was negligence in discharging them. (Dowell v. Guthrie, supra; Scanlon v. Wedger, 156 Mass. 462; Frost v. Josselyn, 180 id. 389.) The plaintiff’s' counsel must have been of this opinion, for the complaint is clearly one in negligence alone.
But upon the theory of negligence the appellant insists that the mere happening of the accident was sufficient proof of negligence.
Thompson in his Commentaries on Negligence (supra), after citing and commenting upon the cases arising out of injuries to [16] spectators by the discharge of fireworks, says : “ It follows that, in an action for damages for such an injury, the burden will be upon the plaintiff to show negligence on the part of the defendant over those for whom he is responsible, and the mere fact of an accident proceeding from such a source will not be evidence of negligence to warrant a recovery of damages, under the principle of res ipsa loquitur, so as to devolve upon the defendant the burden of showing how the explosion occurred, in such a manner as to exonerate himself from the imputation Of negligence.”
In Griffen v. Manice (166 N. Y. 196) the court, by Cullen, J., says : “ When the facts and circumstances from which the jury is asked to infer negligence are those immediately attendant on the occurrence, we speak of it as a case of res ipsa loquitur ; when not immediately connected with the occurrence, then it is an ordinary case of circumstantial evidence. In Benedick v. Potts (88 Maryland, 52) it is said: ‘ In no instance can the bare fact that an injury has happened, of itself and divorced from all the surrounding circumstances, justify the inference tha't the injury was caused by negligence. It is true that direct proof of negligence is not necessary. Like any other fact, negligence may be established by the proof of circumstances from which its existence may be inferred.’ ”
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Houghton, J.:
The city of Albany entered into a contract with the defendant to give an exhibition of fireworks in one of its public parks. The plaintiff was one of the numerous spectators and chose her position in á street adjacent to the park and at no great distance from the place of firing.. When the exhibition had 'been in progress about half an hour and several large rockets had been fired, without damage, the plaintiff while gazing upward was hit in the face" by thex stick of an exploded rocket and severely injured.
At the close of the plaintiff’s evidence the court granted the defendant’s motion for a nonsuit, and from the judgment entered thereon the plaintiff appeals.
The appellant urges that thé defendant was guilty of a nuisance per se, in discharging fireworks in such proximity to a public highway as to be dangerous to persons traveling thereon,.and was, therer fore, liable irrespective of any question as to its negligence in the manner of doing it. We do not think this is so. The display was not unlawful of itself. The authorities of the city of Albany had sanctioned and directed that the display take place in its park. Besides, the plaintiff was not, in a legal sense, using the public high- ’ way for the purposes of travel. She selected her position as a place of View. She was not a passer-by injured by an unforeseen, unlawful act. We do not mean ,to be understood that she was guilty of negligence, as matter of law, in standing as. she did, but her legal status was changed so that she cannot invoke the principle of protection accorded to a mere passer-by injured by the discharge of fireworks in such proximity to the public highway as to be dangerous. (1 Thomp. Neg. [2d ed.] § 791.)
The principle upon which the defendant was held liable m Speir v. City of Brooklyn (139 N. Y. 6) was .quite different from that involved in the present case. There fireworks were discharged in the street and a rocket entered a window of plaintiff’s house and set [15] it on fire. In the course of the opinion, however, the court in that case says: “ 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. * * * 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 place selected and in the management of the display, without subjecting the municipality to the charge of sanctioning a nuisance and the responsibility of "wrongdoers.”
In the well-considered case of Dowell v. Guthrie (99 Mo. 653) it was held that the discharge of fireworks from a veranda in front of the second story of a court house in the populous part of a small city, from troughs so arranged that the rockets would pass over the assembled people, who were there for the purpose of witnessing the display, was not of itself an unlawful or wrongful act; and that a spectator injured under such circumstances occupied a different position from one injured while making the ordinary use of the highway for the purpose of travel.
It is manifestly the rule that where the person injured is not at the time in the ordinary public use of the highway for the purposes of travel, but is attending a celebration or exhibition permitted by municipal authorities as a voluntary spectator, the question of the liability of the person discharging the fireworks depends upon whether there was negligence in discharging them. (Dowell v. Guthrie, supra; Scanlon v. Wedger, 156 Mass. 462; Frost v. Josselyn, 180 id. 389.) The plaintiff’s' counsel must have been of this opinion, for the complaint is clearly one in negligence alone.
But upon the theory of negligence the appellant insists that the mere happening of the accident was sufficient proof of negligence.
Thompson in his Commentaries on Negligence (supra), after citing and commenting upon the cases arising out of injuries to [16] spectators by the discharge of fireworks, says : “ It follows that, in an action for damages for such an injury, the burden will be upon the plaintiff to show negligence on the part of the defendant over those for whom he is responsible, and the mere fact of an accident proceeding from such a source will not be evidence of negligence to warrant a recovery of damages, under the principle of res ipsa loquitur, so as to devolve upon the defendant the burden of showing how the explosion occurred, in such a manner as to exonerate himself from the imputation Of negligence.”
In Griffen v. Manice (166 N. Y. 196) the court, by Cullen, J., says : “ When the facts and circumstances from which the jury is asked to infer negligence are those immediately attendant on the occurrence, we speak of it as a case of res ipsa loquitur ; when not immediately connected with the occurrence, then it is an ordinary case of circumstantial evidence. In Benedick v. Potts (88 Maryland, 52) it is said: ‘ In no instance can the bare fact that an injury has happened, of itself and divorced from all the surrounding circumstances, justify the inference tha't the injury was caused by negligence. It is true that direct proof of negligence is not necessary. Like any other fact, negligence may be established by the proof of circumstances from which its existence may be inferred.’ ”
We are, therefore, brought to consider whether there were any circumstances surrounding the accident which justified the inference of negligence. The stick from the exploded rocket struckdhe ground at a dangerous place and amidst a crowd of spectators. No other fact appears, and the inference is sought to be drawn that it must have been carelessly or intentionally fired in the direction of the crowd. The angle of the troughs from which the rockets are fired determines their direction. Other rockets had been fired, the sticks of which struck the ground where, they would do no harm. Causes other than negligence on the part of the defendant’s servants may have carried the rocket over the heads of the spectators instead óf in the direction in which it was aimed. A current of air would manifestly carry it some' distance. Even when fired with due care the momentum caused by the firing may have changed its direction before it left the trough. Some act on the part of the men engaged in setting the rocket, not amounting to carelessness, may have varied its angle at the time of firing. For none of these would the defend[17] ant be responsible. If prior to the accident several rockets had fallen in a dangerous locality, it might well be said that the defendant should have Observed what was happening and changed their direction, but the one which -injured the plaintiff was the only one that had fallen in an improper place. Competition and desire for display has led to the manufacture of powerful and dangerous explosives, and it may well be that those who exhibit them should be held to great care. But the bare fact that an accident does happen, with no proof of negligence aside from the accident itself, we do not think sufficient upon which to found liability.
The nonsuit was proper and the judgment should be affirmed.
All concurred, except Smith, J., dissenting in opinion.