Nash, J.:
The village of Warsaw is an incorporated village containing 3,300 inhabitants. Main street, its principal street, is six rods wide. In 1904 one Coloross owned a brick store of two stories with twenty feet frontage on the east side of that street, where he sold fruit, candies, nuts and popcorn. The front of the store contained plate glass windows. The sidewalk in front was ten feet seven inches in width and covered with a wooden awning supported by two columns resting on stone foundátíons at the outer edge of the walk. - ■
Coloross constructed the platform between these pillars' flush with the sidewalk and four feet wide, and on this located his peanut roasting machine and popcorn heater. The machine was mounted on wheels; those in front being two feet, and those in the rear two and one-half feet in diameter. The wagon was five feet in length and two in width. The popcorn case was two feet square and twenty-six inches in height. It was operated by steam generated by means of gasoline in a burner under the boiler, which held about three gallons of water with an automatic, feeder. There was a canvass top to the wagon and a tongue-was attached tó it so it could be moved readily. Its entire weight was about 450 pounds.
Coloross purchased this machine May 2, 1904, and used it daily up to the time of the explosion. The machine was placed on the platform every morning about seven o’clock and taken into the store in the evening about ten o’clock. Water was put into the boiler nearly every morning, and about a gallon of gasoline was consumed daily in its operation. It was in place every business day, but not constantly operated ; if a supply of the peanuts and popcorn was on hand steam enough was kept up to heat them. There W a steam wlflstlp on th§ tpapipiie which wa§ sounded occasionally [620]*620as sort of an advertisement of the business and of the contrivance: > the noise could be heard for two or three blocks.
The trustees of the village knew that this roasting machine was in the street on the platform in front of the store from day to-day and that it was in operation. They passed the store occasionally, were the customers of Ooloross more or less, were about the streets often, and that this machine was operated by-steam and was for roasting jieanuts was apparent to any one who saw it.
The peanut roaster was not an obstruction to public travel either upon the sidewalk or in" the street. The platform on which it stood was laid over a brick pavement which sloped from the sidewalk to the gutter. It occupied the space between the sidewalk and the paved gutter, no part of the machine was in the street or liable to be hit or touched by passing vehicles. In this respect it differs entirely in character from the obstructions found in the authorities relied upon to support the plaintiff’s contention. In the Wells case, most relied upon (Wells v. City of Brooklyn, 9 App. Div. 61), a large showcase of wood and -glass had for several years stood upon the curb line of the street, originally fastened by means of an iron brace to an awning post. The day before the accident- the case was knocked over by a collision with a truck and torn from its fastening. It Was put back in position but not fastened to the post in-any manner. The next day the case was blown down by't-he wind and the plaintiff was hurt. The city was held liable upon the ground that the showcase being permanent in character, continuously maintained and unauthorized, constituted a public nuisance, which it was the duty of the city to remove as soon as knowledge of its existence could fairly be attributed to it; that the officials of the city, in the exercise of ordinary prudence, ought reasonably to have anticipated that such an incumbrance was likely to be loosened by contact with vehicles and thus become dangerous. Ho sinch condition could have arisen from the presence of the Ooloross machine in the place where it stood. It was not on the sidewalk or in the street where vehicles or pedestrians were liable to come in contact with it. It was movable, not a fixture; with an attendant in charge through the day who could move it if in the way at any time,, and at night it was taken into the store. Eliminate the explosive character of the machine from the case, "and the idea of its "being an [621]*621obstruction, dangerous to the public travel, and, therefore, a nuisance, is absent, and no negligence could properly be imputed to the defendant for permitting its use by Coloross in his business. It was no more an obstruction, dangerous to public travel, than the posts which supported the awning over the walk in front of his store. An encroachment upon the street, which does not interfere with public travel, is not a nuisance per se. (Bieling v. City of Brooklyn, 120 N. Y. 98; Hume v. Mayor, 74 id. 264; Leary v. City of Yonkers, 95 App. Div. 126.) In, the latter case an overhanging business sign, which had become unsafe, fell and injured the plaintiff while passing upon the sidewalk. It was held that the measure of the city’s liability in respect to such sign was the exercise of reasonable care; that the city was not liable unless its servants in the ordinary discharge of their duties should have discovered that the sign had become unsafe. The two former were awning cases, in which it was held that reasonable diligence only was required on the part of the city to see that wooden awnings were kept in a safe condition.
Upon the question of the defendant’^ liability in this case, Hunt v. Mayor (109 N. Y. 134) seems to be directly in point.
The general rule there laid down regarding the liability of municipal corporations for injuries occasioned by, obstructions in the streets, deduced from the case, is stated in the syllabus as follows :
“ There is no absolute guaranty or undertaking on the part of a municipal corporation that its streets or other constructions shall at all times and under all circumstances be in a safe and próp.er condition. Its obligation and duty extend only to the exercise of reasonable care and vigilance, and to create liability, willful misconduct or culpable neglect must be established.
“ The mere existence of a defect, rendering a street unsafe, from which a traveler sustains an injury, where the defect was not created by the act or consent of the municipality, does not, independent. of negligence, establish a culpable breach of duty on its part.”.
The action was brought to recover damages for injuries received by plaintiff on the 27th day of January, 1883, while lawfully passing along Broadway, in the city of New York, by an explosion at one of the manholes of the American Heating and Power Company, at the junction of Broadway and Maiden lane.
[622]*622The heating and power company had the consent of the city to use the street for steam pipes, but the city was empowered to prescribe proper regulations and conditions for the use of the streets for that purpose, and for an omission to prescribe proper regulations or exercise proper supervision over the work the city was liable .for accidents attributable to such omission. It was insisted that the omission of the city to prescribe the manner of • laying the steam pipes or to take any measures to guard against an explosion was an omission of duty which rendered it liable. The evidence tended to show that there was no reasonable ground for apprehending any danger from the' proximity of the steam pipes to the gas pipes, which was the cause of the explosion.
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Nash, J.:
The village of Warsaw is an incorporated village containing 3,300 inhabitants. Main street, its principal street, is six rods wide. In 1904 one Coloross owned a brick store of two stories with twenty feet frontage on the east side of that street, where he sold fruit, candies, nuts and popcorn. The front of the store contained plate glass windows. The sidewalk in front was ten feet seven inches in width and covered with a wooden awning supported by two columns resting on stone foundátíons at the outer edge of the walk. - ■
Coloross constructed the platform between these pillars' flush with the sidewalk and four feet wide, and on this located his peanut roasting machine and popcorn heater. The machine was mounted on wheels; those in front being two feet, and those in the rear two and one-half feet in diameter. The wagon was five feet in length and two in width. The popcorn case was two feet square and twenty-six inches in height. It was operated by steam generated by means of gasoline in a burner under the boiler, which held about three gallons of water with an automatic, feeder. There was a canvass top to the wagon and a tongue-was attached tó it so it could be moved readily. Its entire weight was about 450 pounds.
Coloross purchased this machine May 2, 1904, and used it daily up to the time of the explosion. The machine was placed on the platform every morning about seven o’clock and taken into the store in the evening about ten o’clock. Water was put into the boiler nearly every morning, and about a gallon of gasoline was consumed daily in its operation. It was in place every business day, but not constantly operated ; if a supply of the peanuts and popcorn was on hand steam enough was kept up to heat them. There W a steam wlflstlp on th§ tpapipiie which wa§ sounded occasionally [620]*620as sort of an advertisement of the business and of the contrivance: > the noise could be heard for two or three blocks.
The trustees of the village knew that this roasting machine was in the street on the platform in front of the store from day to-day and that it was in operation. They passed the store occasionally, were the customers of Ooloross more or less, were about the streets often, and that this machine was operated by-steam and was for roasting jieanuts was apparent to any one who saw it.
The peanut roaster was not an obstruction to public travel either upon the sidewalk or in" the street. The platform on which it stood was laid over a brick pavement which sloped from the sidewalk to the gutter. It occupied the space between the sidewalk and the paved gutter, no part of the machine was in the street or liable to be hit or touched by passing vehicles. In this respect it differs entirely in character from the obstructions found in the authorities relied upon to support the plaintiff’s contention. In the Wells case, most relied upon (Wells v. City of Brooklyn, 9 App. Div. 61), a large showcase of wood and -glass had for several years stood upon the curb line of the street, originally fastened by means of an iron brace to an awning post. The day before the accident- the case was knocked over by a collision with a truck and torn from its fastening. It Was put back in position but not fastened to the post in-any manner. The next day the case was blown down by't-he wind and the plaintiff was hurt. The city was held liable upon the ground that the showcase being permanent in character, continuously maintained and unauthorized, constituted a public nuisance, which it was the duty of the city to remove as soon as knowledge of its existence could fairly be attributed to it; that the officials of the city, in the exercise of ordinary prudence, ought reasonably to have anticipated that such an incumbrance was likely to be loosened by contact with vehicles and thus become dangerous. Ho sinch condition could have arisen from the presence of the Ooloross machine in the place where it stood. It was not on the sidewalk or in the street where vehicles or pedestrians were liable to come in contact with it. It was movable, not a fixture; with an attendant in charge through the day who could move it if in the way at any time,, and at night it was taken into the store. Eliminate the explosive character of the machine from the case, "and the idea of its "being an [621]*621obstruction, dangerous to the public travel, and, therefore, a nuisance, is absent, and no negligence could properly be imputed to the defendant for permitting its use by Coloross in his business. It was no more an obstruction, dangerous to public travel, than the posts which supported the awning over the walk in front of his store. An encroachment upon the street, which does not interfere with public travel, is not a nuisance per se. (Bieling v. City of Brooklyn, 120 N. Y. 98; Hume v. Mayor, 74 id. 264; Leary v. City of Yonkers, 95 App. Div. 126.) In, the latter case an overhanging business sign, which had become unsafe, fell and injured the plaintiff while passing upon the sidewalk. It was held that the measure of the city’s liability in respect to such sign was the exercise of reasonable care; that the city was not liable unless its servants in the ordinary discharge of their duties should have discovered that the sign had become unsafe. The two former were awning cases, in which it was held that reasonable diligence only was required on the part of the city to see that wooden awnings were kept in a safe condition.
Upon the question of the defendant’^ liability in this case, Hunt v. Mayor (109 N. Y. 134) seems to be directly in point.
The general rule there laid down regarding the liability of municipal corporations for injuries occasioned by, obstructions in the streets, deduced from the case, is stated in the syllabus as follows :
“ There is no absolute guaranty or undertaking on the part of a municipal corporation that its streets or other constructions shall at all times and under all circumstances be in a safe and próp.er condition. Its obligation and duty extend only to the exercise of reasonable care and vigilance, and to create liability, willful misconduct or culpable neglect must be established.
“ The mere existence of a defect, rendering a street unsafe, from which a traveler sustains an injury, where the defect was not created by the act or consent of the municipality, does not, independent. of negligence, establish a culpable breach of duty on its part.”.
The action was brought to recover damages for injuries received by plaintiff on the 27th day of January, 1883, while lawfully passing along Broadway, in the city of New York, by an explosion at one of the manholes of the American Heating and Power Company, at the junction of Broadway and Maiden lane.
[622]*622The heating and power company had the consent of the city to use the street for steam pipes, but the city was empowered to prescribe proper regulations and conditions for the use of the streets for that purpose, and for an omission to prescribe proper regulations or exercise proper supervision over the work the city was liable .for accidents attributable to such omission. It was insisted that the omission of the city to prescribe the manner of • laying the steam pipes or to take any measures to guard against an explosion was an omission of duty which rendered it liable. The evidence tended to show that there was no reasonable ground for apprehending any danger from the' proximity of the steam pipes to the gas pipes, which was the cause of the explosion. It was held that under such circumstances the omission of the city to make a regulation prescribing the manner in which the steam pipes should be laid furnished no evidence of négligence.
The language of the court in reaching its decision, by Andrews, J., is as follows: t£ The fact of the explosion is itself a demonstration that the street was at the time in an unsafe and' dangerous condition, and the only question is whether upon the evidence, the city is or may be liable for the injury suffered by the plaintiff. The duty-cast upon a municipal corporation to keep its streets in a safe condition for travel is not absolute, so as to impose liability upon the corporation in every case where a traveler, without fault on his part, sustains injury from a defective street. . Its liability depends, in all cases upon negligence, that is, upon the fact whether it has omitted to exercise due care, under the circumstances, in their maintenance or reparation. The mere existence of a defect from which a travelér sustains injury does not, independently of negligence,- establish a culpable breach of duty on the part of a municipality. The cases of injuries from obstructions placed in streets by third persons without the consent of the municipality, of which it has no -notice, are illustrations of the principle, that the liability of a municipality for the unsafe condition of its streets rests upon the basis of negligence, and not upon an obligation assumed or imposed bylaw to keep the streets at all times and at all hazards in an absolutely safe condition for travel. Where an injury happens from the defect of a roadway itself, or from a dangerous condition of the street created by the act or consent of the municipality, negligence, as ip [623]*623the other cases mentioned, is the ground of liability. In the one class of cases the conclusion of negligence may be reached more easily than in the other, but the principle upon which the liability depends is the samé in both, notwithstanding the difference in the circumstances. Where the defect is known, rendering the street unsafe and dangerous, the municipality is bound to be prpmpt and vigilant in remedying it. It is at all times bound to exercise due care that the streets are safe and' free from ■ dangerous defects, and that they shall not become unsafe or dangerous. To this extent its duty is absolute. The language of the cases expressing the measure of duty resting upon a municipal corporation in respect to its streets, sewers, etc., has not always been carefully guarded, but the doctrine has been frequently reiterated in this court that there is no absolute guaranty or undertaking on the part of a municipal corporation that its streets or other constructions shall at all times and under all circumstances be in a safe and proper condition, and that its obligation and duty extend only to the exercise of reasonable care and vigilance. (McCarthy v. City of Syracuse, 46 N. Y. 194; Smith v. Mayor, etc., 66 id. 295; Ring v. City of Cohoes, 77 id. 83; Hubbell v. City of Yonkers, 104 id. 434.) There must be willful misconduct or culpable neglect to create liability.
“ It follows that negligence on the part of the city was an essential element of the plaintiff’s case, and it was incumbent upon him to establish it, or to give evidence from which it could be inferred, before he was entitled to have the question submitted to the jury.”
Within the rule thus laid down it was incumbent upon the plaintiff here to prove that there was reasonable ground for apprehension that an explosion would occur in the ordinary use of the machine, and injury therefrom result to passers-by on the sidewalk or in the street. If the plaintiff was entitled to a presumption of negligence, arising from the happening of the explosion, evidence that .machines of this kind were in common use in the streets of other cities and villages, and the defendant’s trustees had never heard of one of them exploding, offered by the defendant to rebut the presumption, should have been received. '
It was error, therefore, for the court to hold as matter of law that the maintenance of the peanut roaster by Coloross constituted [624]*624a public nuisance, 'and that the defendant was liable,, submitting-only the question of damages to the jury.
- The judgment should be'reversed.
McLennan, P., J., concurred'; Kruse, J., concurred,, in an opinion ; Spring, J., dissented, in an opinion, in which Williams, J., concurred. ,