Opinion
June 30, 1925.
Appeal from Supreme Court of Erie County.
Frederic C. Rupp, Corporation Counsel [ Gregory U. Harmon of counsel], for the appellant.
Elijah W. Holt, for the respondent.
Plaintiff's intestate was injured by the fall of a portable parking sign blown over by the wind. The negligence alleged is that it had been placed in a position where it was liable to be blown over and had there remained for a long period while the wind was blowing. The evidence shows that the sign had stood on the curb and that the maximum velocity of the wind as recorded at the local weather bureau had been, on October 7, 1921, the day of the accident, sixty-one miles per hour. The sign was made of iron and consisted of a round base into which was fitted a pipe at the top of which was a disk. It weighed forty and three-fourths pounds. It was of a type in common use throughout the country and had been selected by the city authorities after due investigation. There is nothing to show that it was not properly set at the curb or that it or its type had a tendency to be blown over. No other instance of such a fall appears.
It is, of course, the duty of the defendant to exercise reasonable care in keeping its streets safe for the traveling public. Under the General Highway Traffic Law (§ 15, subd. 1) the city had authority to use portable signs in the street. Such use could not, therefore, be held a nuisance as a matter of law. Whether it was such in fact, so that a failure to abate it would be negligence, depends upon whether defendant knew such use was dangerous or might reasonably have foreseen some accident therefrom. ( McCloskey v. Buckley, 223 N.Y. 187.)
The fact that this type of sign was adopted after investigation and as a matter of judgment is not conclusive. ( Stern v. International R. Co., 220 N.Y. 284.)
The verdict was contrary to the evidence on the question of negligence, and the judgment should be reversed on the law and the facts.
All concur, HUBBS, P.J., in result, being in favor of dismissing the complaint. Present — HUBBS, P.J., CLARK, DAVIS, CROUCH and TAYLOR, JJ.
Judgment and order reversed on the law and facts, and new trial granted, with costs to appellant to abide the event.