Triay v. Richard Carvel Co.

Scott, J.: The plaintiff, a child six years of age, stumbled over a plank, being one of a number which had been dumped by the defendant in-the highway, partly on the sidewalk and partly in the roadway. This pile of lumber constituted a nuisance. (Lawton v. Olmstead, 40 App. Div. 544; Place v. Delaware, L. & W. R. R. Co., 157 id. 24.) It is true that defendant was a contractor for a work of public improvement and that it probably intended to use the lumber in its work, but it had received no permit to place the lumber where it did place it, nor does it appear that any necessity of the work required that [616] it should he so placed and kept for several days. The plaintiff was lawfully using the sidewalk and the evidence made out a prima facie case of liability against the defendant. Whether there was contributory negligence on the part of the child or its mother was for the jury under proper instructions. We certainly cannot say .that such negligence appeared from the evidence as matter of law. Thé judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event. Claree, P. J., McLaughlin, Smith and Davis, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event.