by plaintiff, and her voluntarily going into the situation, as she undisputedly did, precludes her recovery.

Linzey v. American Ice Co. 131 App. Div. 333, 115 N. Y. Supp. 767 (affirmed in 197 N. Y. 605, 91 N. E. 1116); Dygert v. Schenck, 23 Wend. 452, 35 Am. Dec. 575; McGinnis V. Hyman, 63 Misc. 316, 117 N. Y. Supp. 202; Harlow v. Humiston, 6 Cow. 192; Chaffee v. Telephone & T. Constr. Co. 77 Mich. 629, 6 L.R.A. 455, 18 Am. St. Rep. 424, 43 N. W. 1064; Keating v. Metropolitan Street R. Co. 105 App. Div. 364, 94 N. Y. Supp. 117; Whalen v. Citizens' Gaslight Co. 151 N. Y. 70, 45 N. E. 363, 1 Am. Neg. Rep. 120; 20 R. C. L. § 110.

The trial court erred in charging the jury that plaintiff "was bound to no special care in seeking to avoid any accident there, and that this plaintiff had a right to assume that the sidewalk and this part projecting were as safe as any other part of the sidewalk."

Harlow v. Humiston, 6 Cow. 192; Williams v. New York, 214 N. Y. 260, 108 N. E. 448; Dygert v. Schenck, 23 Wend. 452, 35 Am. Dec. 575; Irwin v. Sprigg, 6 Gill, 200, 46 Am. Dec. 667; Flower v. Adam, 2 Taunt. 314, 127 Eng. Reprint, 1098; Lane v. Crombie, 12 Pick. 177; 20 R. C. L. § 110; Keating v. Metropolitan Street R. Co. 105 App. Div. 364, 94 N. Y. Supp. 117; Nolan v. King, 97 N. Y. 571, 49 Am. Rep. 561; Weston V. Troy, 139 N. Y. 281, 34 N. E. 780; Whalen V. Citizens' Gaslight Co. 151 N. Y. 70, 45 N. E. 363, 1 Am. Neg. Rep. 120; Quinn v. New York, 145 App. Div. 195, 129 N. Y. Supp. 1028; Butler v. Oxford, 186 N. Y. 444, 79 N. E. 712.

The trial court erred in charging the jury: "If the jury find that if the accident was caused by her negligence and by her negligence alone, or on account of a mishap or accident for which nobody was responsible, why the plaintiff cannot recover. But if it was caused by the defendant maintaining a dangerous place there, and that the maintenance of that dangerous place was either the entire cause, or was a part cause, of this accident, then the plaintiff can recover."

Harlow v. Humiston, 6 Cow. 192; Dygert v. Schenck, 25 Wend. 452, 35 Am. Dec. 575; Crommelin v. Coxe, 30 Ala. 329, 68 Am. Dec. 120; Irwin v. Sprigg, 6 Gill, 200, 46 Am. Dec. 667; Flower v. Adam, 2 Taunt. 314, 127 Eng.

Reprint, 1098; Lane v. Crombie, 12 Pick. 177; Linzey v. American Ice Co. 131 App. Div. 333, 115 N. Y. Supp. 767 (affirmed in 197 N. Y. 605, 91 N. E. 1116); Hunt v. New York, 109 N. Y. 140, 16 N. E. 320.

Defendant's liability could not be predicated on nuisance, but must be on negligence, if there be any liability.

Glover v. Holbrook, C. & R. Corp. 189 App. Div. 328, 178 N. Y. Supp. 517; Hunt v. New York, supra; McCluskey v. Wile, 144 App. Div. 470, 129 N. Y. Supp. 455; Gottsberger v. New York, 9 Misc. 350, 29 N. Y. Supp. 592; Jenney v. Brooklyn, 120 N. Y. 167, 24 N. E. 274; McDonnell v. Gerken, 197 App. Div. 446, 189 N. Y. Supp. 224 (affirmed in 236 N. Y. 617, 142 N. E. 307); Berger v. Content, 47 Misc. 391, 94 N. Y. Supp. 12.

Mr. Francis T. Findlay, with Messrs. Watts, Hunt, & Findlay, for respondent:

The action was properly submitted to the jury on a theory of nuisance. Hogle v. H. H. Franklin Mfg. Co. 199 N. Y. 388, 32 L.R.A. (N.S.) 1038, 92 N. E. 794; Herman v. Buffalo, 214 N. Y. 318, 108 N. E. 451; Landau v. New York, 180 N. Y. 48, 105 Am. St. Rep. 709, 72 N. E. 631, 17 Am. Neg. Rep. 331; Metzroth v. New York, 241 N. Y. 470, 150 N. E. 519; Klepper v. Seymour House Corp. 246 N. Y. 95, A.L.R. -, 158 N. E. 29; Melker v. New York, 190 N. Y. 481, 16 L.R.A. (N.S.) 621, 83 N. E. 565, 13 Ann. Cas. 544; Speir v. Brooklyn, 139 N. Y. 6, 21 L.R.A. 641, 36 Am. St. Rep. 664, 34 N. E. 727; Linzey v. American Ice Co. 131 App. Div. 333, 115 N. Y. Supp. 767; Clifford v. Dam, 81 N. Y. 52; McGuire v. Spence, 91 N. Y. 305, 43 Am. Rep. 668.

-

Contributory negligence, in its usual meaning, is not a defense in this case. Maltbie v. Bolting, 6 Misc. 339, 26 N. Y. Supp. 903; Hogle v. H. H. Franklin Mfg. Co. 199 N. Y. 388, 32 L.R.A. (N.S.) 1038, 92 N. E. 794.

Cardozo, Ch. J., delivered the opinion of the court:

Plaintiff, walking in the city of Niagara Falls, stumbled as she was stepping from the driveway to the walk. She caught her heel against a fanlike projection where the cement had melted and run. The projection jutted out about 16 inches, and was irregular and slanting with declivities and hollows

The

The same conditions had existed since the construction of the walk two or three years before. plaintiff lived in the neighborhood. She had noticed the projection at other times, though she had paid no particular attention to it. Her mishap occurred during an afternoon in late December, after darkness had set in. She suffered injuries for which she sued.

The case was tried upon the theory of nuisance. The jury were told, in substance, that a nuisance existed if the city maintained the walk in a dangerous condition. Danger, we think, there was in unreasonable degree, or so a jury might find. A traveler is not always on his guard against a projection so unusual. He measures his gait in the belief that he has a clear space ahead of him before stepping on the walk. He is taken by surprise when something strikes against his heel and stays the motion of his foot. A prudent municipality would know that if this should come to pass, there would be danger more than fanciful.

sidewalk and driveway.

If danger there was, then also there was nuisance, though nuisance growing out of negHighwaysnuisance-proNuisance ligence. jection between as a concept of the law has more meanings than one. The primary meaning does not involve the element of negligence as one of its essential factors. Heeg v. Licht, 80 N. Y. 579, 36 Am. Rep. 654, 11 Mor. Min. Rep. 74. One acts sometimes at one's peril. In such circumstances, the duty to desist is absolute whenever conduct, if persisted in, brings damage to another. 21 Laws of England (Halsbury) p. 507, § 845. Illustrations are abundant. One who emits noxious fumes or gases day by day in the running of his factory may be liable to his neighbor though he has taken all available precautions. McCarty v. Natural Carbonic Gas Co. 189 N. Y. 40, 13 L.R.A. (N.S.) 465, 81 N. E. 549, 12 Ann. Cas. 840. He is not to do such things at all, whether he is

negligent or careful. One who digs a hole in the highway will not be heard to say, if he dug it without license, that the guards placed about it were destroyed without his fault. Congreve v. Smith, 18 N. Y. 79; Wolf v. Kilpatrick, 101 N. Y. 146, 54 Am. Rep. 672, 4 N. E. 188. He was a wrongdoer in digging, and diligence in guarding does not eradicate his fault. Other situations there are, however, where what was lawful in its origin may be turned into a nuisance by negligence in maintenance. The coalhole, built under a license, may involve a liability for nuisance, if there is negligence in covering it. Canandaigua v. Foster, 156 N. Y. 354, 41 L.R.A. 554, 66 Am. St. Rep. 575, 50 N. E. 971. The tumble-down house abutting on a highway is transformed into an unlawful structure if its ruinous condition is a menace to the traveler. Timlin v. Standard Oil Co. 126 N. Y. 514, 22 Am. St. Rep. 845, 27 N. E. 786. In these and like situations, the danger, being a continuing one, is often characterized as a "nuisance," though dependent upon negligence. Indeed,

one of the most familiar instances of nuisance is a highway out of repair. Pollock, Torts, 10th ed. p. 1016. Narrow, too, is the line between nuisance and negligence. One can create a nuisance by leaving a wagon in the street. Cohen v. New York, 113 N. Y. 532, 4 L.R.A. 406, 10 Am. St. Rep. 506, 21 N. E. 700. If the danger threatens the public, the nuisance is classified as common; private, if it threatens one person or a few. Halsbury, supra, p. 515, § 865.

We have gone into these distinctions for their bearing on the law of contributory negligence. The trial judge told the jury that contributory negligence, though proved, would not avail as a defense. If the defendant was at fault at all, liability would follow, though plaintiff was at fault also. His final word was this: "I intended to charge that if the jury found that the accident was caused by her negligence,.

and her negligence alone, or on account of a mishap or accident for which nobody was responsible, the plaintiff cannot recover. But if it was caused because the defendant maintained a dangerous place there, and the maintenance of that dangerous place either was the entire cause or was a part cause of this accident, then the plaintiff can recover."

We think the charge was error.

Not a little confusion runs through the reports as to the effect of contributory negligence upon liability for nuisance. Statements appropriate enough in their application to nuisances of one class have been thoughtlessly transferred to nuisances of another. There has been forgetfulness at times that the forms of actions have been abolished, and that liability is dependent upon the facts and not upon the Confining ourselves now to the necessities of the case before us, we hold that whenever a nuisance has its origin in negligence, one may not avert the consequences of his own contributory negligence by affixing to the negligence of the

name.

Nuisancenegligencecontributory negligence.

wrongdoer the label of a nuisance. Junkermann v. Tilyou Realty Co. (Junkermann v. Jankelson) 213 N. Y. 404, 408, L.R.A.1915F 700, 108 N. E. 190; Uggla v. Brokaw, 117 App. Div. 586, 591, 102 N. Y. Supp. 857; Lusk v. Peck, 132 App. Div. 426, 432, 116 N. Y. Supp. 1051, id. 199 N. Y. 546, 93 N. E. 377; Hartman v. Lowenstein, 90 Misc. 686, 689, 154 N. Y. Supp. 205. Very often the sufferer is at liberty to give to his complaint either one label or the other. It would be intolerable if the choice of a name were to condition liability. The snow or ice suffered by a municipality to remain upon the walk is one wrong, and one only, whatever the traveler may call it. Williams v. New York, 214 N. Y. 259, 108 N. E. 448.

The cases in this court hold nothing to the contrary.

Clifford v. Dam, 81 N. Y. 52, was a case of injury to a traveler

through an opening in a highway. License was not pleaded. We held that, unless pleaded, it might not be proved. The defendant therefore was a wrongdoer, and subject to a liability not dependent upon negligence. Much of what was said as to contributory negligence was unnecessary to the decision. The trial judge had not charged that contributory negligence would not affect a recovery. On the contrary, he had charged (as an examination of the record shows) that the plaintiff must fail "if by any negligence on his part he contributed to the injury, no matter in how slight a degree." What followed was explanatory of the meaning of contributory negligence in the situation then at hand. The jury were reminded that the plaintiff was lawfully upon the highway. "He was in a position where he was not bound to keep a special lookout for pitfalls; he had a right to assume that the public highway would be safe for all travelers; and he had a right to act on that assumption." To this there was no exception. There was little more than an expansion of the same thought in the opinion rendered here.

It

McGuire v. Spence, 91 N. Y. 303, 305, 43 Am. Rep. 668, was another case of an uncovered opening. was decided upon an assumption for the purpose of an appeal that contributory negligence, if proved, would have been an obstacle to relief. All that was held was that the jury were at liberty to find that such negligence was absent. "Negligence," it was said, "is a relative term." "One who passes along a sidewalk has a right to presume it to be safe." There is no duty to be alert for danger where none should be expected. Cf. Mullins v. Siegel-Cooper Co. 183 N. Y. 129, 138, 75 N. E. 1112; Jennings v. Van Schaick, 108 N. Y. 530, 2 Am. St. Rep. 459, 15 N. E. 424.

Nolan v. King, 97 N. Y. 565, 571, 572, 49 Am. Rep. 561, supplements very neatly the ruling in McGuire. v. Spence, supra. It shows how

there comes, with changed expectations of the likelihood of danger, a changed standard of precaution. There a temporary bridge had been laid over a walk while the work of building was under way. The bridge, though put up under permit, was said to be unsafe. The court held that a passenger was not at liberty to cross with as little heed and care as upon a completed pavement.

Kelly v. Doody, 116 N. Y. 575, 22 N. E. 1084, was a case of an excavation in a street. Plaintiff, who lived near by, had knowledge of the trench, for which a permit had been issued. A charge that a recovery would not be affected by contributory negligence was held to be erroneous. "The action does not belong to that class of actions where the obstruction in a street is without authority and wholly wrongful, such as the case of Clifford v. Dam, supra, and the cases there cited."

Weston v. Troy, 139 N. Y. 281, 34 N. E. 780, is a case of a fall upon ice, and Whalen v. Citizens' Gaslight Co. 151 N. Y. 70, 45 N. E. 363, 1 Am. Neg. Rep. 120, one of a fall upon a flagstone. In each there was a ruling that a traveler who sees the danger must use reasonable care to overcome or escape it. "The presumption which a wayfarer may indulge, that the streets of a city are safe, and which excuses him from maintaining a vigilant outlook for dangers and defects, has no application where the danger is known and obvious." Weston v. Troy, supra.

The danger may be so apparent that a traveler ought to have seen it, though he professes he did not. See Whalen v. Citizens' Gaslight Co. supra, p. 73; Mosheuvel v. District of Columbia, 191 U. S. 247, 48 L. ed. 170, 24 Sup. Ct. Rep. 57, 15 Am. Neg. Rep. 246. A presumption of safety will not serve as an excuse for blind indifference to consequences. One must use the streets as others use them. Cf. Casey v. Malden, 163 Mass. 507, 47 Am. St. Rep. 473, 40 N. E. 849. The wayfarer,

who has the sense of sight, is not to close his eyes or travel as one blind. Davenport v. Ruckman, 37 N. Y. 568. The driver is not to fling aside the reins, and rush headlong into the ditch. We said of the plaintiff in the Whalen Case: "It is difficult to conceive how she could have avoided seeing the obstacle unless she was heedlessly proceeding in utter disregard of the precautions usually taken by careful and prudent people." 151 N. Y. at p. 74. If so, the fault was hers.

The rule to be extracted from these and like cases (e. g., Chisholm v. State, 141 N. Y. 246, 36 N. E. 184; Morrell v. Peck, 88 N. Y. 398; Minick v. Troy, 83 N. Y. 514) may now be formulated. At least where the substance of the wrong is negligence, a plaintiff, though pleading nuisance, is under -effect of cona duty to show care tributory negliproportioned to the gence. danger. Reasonable care is merely care so proportioned. The danger may be seen or unseen. If seen, there must be effort to avoid it. If unseen, the inquiry will be whether one using a street as travelers commonly do, would perceive the danger, and escape it. The relativity of the concept of negligence is to be kept in mind throughout. Movement on a highway is not governed by a special rule unknown to movement elsewhere. One who walks. through the aisle of a department store at the invitation of the proprietor does not look for traps and obstacles any more than on a street if there is nothing to suggest them. The act should fit the need. Cf. Shearm. & Redf. Neg. § 375, and cases there cited.

What we rule in this case is limited to a situation where negligence is the basis of the nuisance, and this for the reason that nothing more is called for by the facts. The defendant was not doing an act inherently unlawful when it paved the city streets. Power to regulate the streets had been given by the charter. What was dangerous and wrong did not inhere in the work