#### Mary Jordan, Administratrix, Etc., of William Jordan, Deceased, Plaintiff, *v.*The City of New York, Defendant.

(Supreme Court, New York Trial Term,

January, 1899.)

Negligence — A hubstone on a city sidewalk is not per se a nuisance.

The driver oí a truck drove, in daylight, in and out of a yard 'and over a sidewalk in the city of New York, and over a bridge which extended over the gutter from the curb to the street. On one side of the passage-way there was a large pile of stones and on the other side a hubstone, about eighteen inches high, which protected trucks from falling into the gutter. The passage-way was a foot wider than the driver’s truck. In driving out, his front wheel struck the hub-stone, the jolt was supposed to have thrown him from his truck, and he1 was fatally injured by the fall.

Held, that the hubstone was not *per se*a nuisance, thajt its presence was not evidence of an unreasonable u,se of the sidewalk, and that the administratrix of the driver could not recover against the city as for negligence.

Action to recover damages for injuries resulting in decedent’s death.

Motion by plaintiff for new trial on the minutes.

Welch & Daniels (Daniel P. Hays, of counsel), for plaintiff.

John Whalen and Chas. Blandy, for defendant.

McAdam, J.

On February 28, 1898, plaintiff’s intestate entered the works of the Consolidated Gas Company with a team and truck, and while there, loaded his truck and proceeded with his team towards the scales of the company, and after weighing his load proceeded to drive out over the sidewalk into the highway known as Eleventh avenue. A bridge extended over the gutter from the curb. To thel south of the passage-way was a large pile of stones collected near the corporation yard, and to the north was a hubstone, about eighteen inches high, to protect trucks from going beyond the end of the bridge and falling into the gutter. There was a clear passage-way of eight feet and one inch for trucks to come in and go out. The truck driven by the intestate was *54seven feet wide from the outside rim of one wheel to the outside rim of the other, leaving about thirteen inches of roadway to be divided up on both sides of the truck. While driving out over the walk, the horses swerved a little towards the north and the front wheel struck the hubstone, and the jolt is supposed to have thrown the intestate off the wagon, causing injuries which resulted in his death. The pile of stones on the south and hubstone on the north side of the 'entrance-way to the gas works had been there for many years before the accident. They were at once observable to the eye. The passage-way and the bridge were in good substantial condition. The plaintiff’s intestate had driven into the gas works on the morning of the accident and gone out to Eleventh avenue over this same driveway. In the afternoon of the same day he had brought another load to the gas works and was driving from them when the accident occurred. It was daylight and the intestate had ample opportunity to determine whether the passage-way was sufficient' for all his purposes, and he decided that it was. It evidently was sufficient, for it had been found to be so by the numerous drivers who had used it in safety for many years before, and the intestate had himself used it in safety on the morning of the accident. The action is in form for negligence or neglect of duty upon the part of the municipality, and not for maintaining a nuisance, and the question is whether these facts standing alone establish a right of recovery against the city, so as to require the submission to the jury of the question of negligence. The court decided that the facts presented did not establish a right of action and dismissed the complaint, and the present is an application by the plaintiff for a new trial. There is nothing in Schafer v. Mayor, 154 N. Y. 466, or in any of the other cases relied on by the plaintiff, pertinent to the question presented here. If the- injury had been caused by a defective condition of the sidewalk or bridge, or, if a pedestrian had in the darkness of night fallen over the hubstone, a different question would have been presented. Hubstones are not *per se*nuisances, nor do their presence evidence an unreasonable or'unwarranted use of the sidewalk; on the contrary, they are useful, if not necessary, appliances to keep trucks in their proper place, and prevent them from sliding into places where they may receive and do damage. They are in common use, and every person of discretion knows their purpose. A nuisance, on the other hand, is something that annoys the public. Griffith v. McCullum, 46 Barb. 561. “ The case at bar is, therefore, *55analogous to the cases where people have been injured by driving against water hydrants, trees, hitching posts, telegraph poles, awning posts or stepping stones situated on the sidewalk immediately adjoining the driveway. In this class of cases it has been invariably held that there was no liability on the part of the municipality.” Platt v. Mayor, 8 Misc. Rep. at p. 412; citing Ring v. City of Cohoes, 77 N. Y. 83; Dubois v. City of Kingston, 102 id. 219; Macomber v. City of Taunton, 100 Mass. 255; Cushing v. City of Boston, 128 id. 330; Arey v. City of Newton, 148 id. 598; City of Wellington v. Gregson, 31 Kans. 99. The accident in this instance, if not caused by the indiscretion or mismanagement of the team by the intestate, was of that unusual and unexpected character that does not by the mere occurrence of the misfortune prove negligence on the part of the municipality or its officials. The doctrine of *res ipsa loquitur*has, therefore, no application. While slighter evidence of compliance with the duty cast upon an injured person may, after death has ensued, be deemed sufficient than where the injured person is alive and competent to testify (Rodrian v. N. Y., N. H. & H. R. R. Co., 125 N. Y. at p. 529; Schafer v. Mayor, 154 id. at p. 472), all the elements essential to fasten liability on the city or to warrant a recovery against it are lacking. The motion for a new trial must he denied.

Motion denied.