Swinson v. Cutter Realty Co.

Adams, J. The issues and the charge of the court show that the case was tried upon the theory of negligence. In our opinion this exclusive view of the evidence does not satisfactorily present the merits of the controversy. The question of the defendant’s liability grows out of a situation alleged to import menace and substantial injury to pedestrians on the sidewalk by their coming in contact with the hydrant projecting from a wall of the defendant’s building. This projecting pipe, it is said, is an obstruction in the street. McQuillin observes that an illegal obstruction which interferes with the free use of a street as such is within the legal notion of a nuisance, but to constitute a nuisance there must be such an annoyance to the public as to render the use of the street hazardous or to prevent its free and unobstructed use as a public thoroughfare. 3 Municipal Corporations (2 ed.), sec. 982. A nuisance may or may not involve elements of *278 negligence; it may exist, not only by reason of a positive act, but by the negligent failure to perform a duty. White v. New Bern, 146 N. C., 447; Alexander v. Statesville, 165 N. C., 527. Primarily a nuisance is a condition, not an act, although a thing or an act which is lawful may be a nuisance by reason of its negligent use or operation. Projecting the hydrant from the wall of the building over a part of the sidewalk created a permanent condition. This condition and not the negligent operation of the hydrant is the basis of the asserted liability, and on this point the crucial and decisive question is whether it is such annoyance to the public as to make the use of the sidewalk at that place hazardous or to prevent its free and unobstructed use. In Godfrey v. Power Co., 190 N. C., 24, it is said: “The foundation of legal liability for the creation or maintenance of a nuisance is ordinarily not so much the degree of care that is used as the degree of danger that exists even with the best of care, while the ground of civil liability for negligence is injury to person or property when such injury is not the result of premeditation and formed intention.” It is alleged in the complaint that the defendant constructed the building and put the hydrant in the wall. This, we understand, is not denied; but on the cross-examination of the building inspector, who was a witness for the plaintiff, the defendant elicited evidence that it was the inspector’s duty to pass upon the construction of the building and that he did so and approved the entire structure. It is thence argued that the city approved the construction of the building and that no liability attaches to the defendant by reason of the hydrant. Municipal corporations hold their streets in trust for the public, and as a rule the right of the public to use the streets in a proper way is absolute and paramount. 4 McQuillin, supra, sec. 1437. “The law is well settled that the title either of the fee in the soil or an easement is vested in the municipality in trust for the use of the people as and for a public highway, and that it cannot without legislative authority, divert them from this use.” Elizabeth City v. Banks, 150 N. C., 407. This accords with the general rule that in the absence of legislative authority a municipal corporation has no power to authorize a private individual to make a permanent use of any portion of a street for any private purpose that will interfere with the legitimate use of the street for travel, although some space is left for the public passage. 19 R. C. L., 782, sec. 87. The record does not disclose any legislative enactment authorizing the alleged obstruction, and without such authority the consent of the city, if established, would be no defense. 4 McQuillin, supra, sec. 1437, p. 107; S. v. R. R., 141 N. C., 736; White v. New Bern, supra; 25 L. R. A. (N. S.), 405; Annotation; New York v. Rice, 28 L. R. A. (N. S.), 375. *279 Again, it is said by McQuillin that an unauthorized permanent obstruction of a street is necessarily a public nuisance, while a temporary encroachment may or may not be. Sec. 982, p. 206. A nuisance may be both public and private. McManus v. R. R., 150 N. C., 655. An act or thing may be a nuisance per sej or in its nature it may not be a nuisance, but may become so by reason of its locality and surroundings. The projection of the hydrant from the walls of the defendant’s building a distance of nine inches over the sidewalk is not necessarily a nuisance. Whether it is a nuisance is dependent upon the surroundings and conditions under which it is maintained; and the determination of this question is a matter for the jury under appropriate instructions as to the law. S. v. Malpass, 189 N. C., 349; Brooks v. Mills Co., 182 N. C., 719; Guano Co. v. Lumber Co., 168 N. C., 337; S. v. Edens, 85 N. C., 522, 527; Graves v. Shattuck, 69 A. D., 536. McQuillin says the final question is whether an obstruction or encroachment upon the street is unreasonable and against public rights and the general welfare. Sec. 1438. It is proper to consider as relevant to the question evidence tending to show the width of the sidewalk, the place of the hydrant with respect to its height from the surface, its length, whether it was reasonably observable, and whether under the circumstances it was hazardous to the public. In the absence of statutory requirement a city is under no obligation to light its streets, and when the streets are otherwise reasonably safe neither the absence of lights nor the existence of defective lights is in itself negligence. White v. New Bern, supra. Here the city is not a defendant, but the condition of the lights at the time and place of the plaintiff’s injury may be considered as evidence on the question whether the defendant created hazardous conditions by encroaching upon the sidewalk and failing to give sufficient warning of the danger. See Ruocco v. United Advertising Corporation, 119 At., 48. On the other hand there is evidence that the hydrant was constructed in a way that was usual and customary in Charlotte and other cities. There are circumstances in which neither custom nor necessity will justify the creation of a nuisance; but when a plaintiff shows that the act upon which negligence is predicated was performed in the customary way, the absence of negligence may frequently be inferred. The principle is thus stated in Weireter v. R. R., 178 N. W., 887: “It is true that proving that something was done in the customary way does not necessarily prove that it was not done negligently. The usual way may be a negligent way. But, when the plaintiff shows that the act upon which negligence is predicated was performed in the customary way, the inference nearest at hand is that no negligence has been proven, and the action must fall unless he adduces some evidence by way of experts or otherwise that will justify the jury in concluding that, *280 even though the act was done according to the usual custom, it was nevertheless negligently done, or unless it may be said that the common experience of the ordinary juror makes him competent to determine, without aid of evidence, whether or not the act was negligently performed.” The evidence in this case involves elements of nuisance and negligence and in the instructions excepted to the merits of the whole controversy are not sufficiently determined by the charge or the verdict. New trial.