Frank v. Village of Warsaw , 101 N.Y.S. 938 ( 1906 )

Kruse, J. (concurring):

I concur in the' opinion of Mr. Justice Mash that questions of fact Were presented by the evidence in this case whiob should have been" submitted to the jury,, and that the trial court errbd in holding as a matter of law that the defendant was liable for the injuries sustained by the plaintiff resulting from the explosion of the boiler used in connection with the peanut roaster. The mere fact that the village trustees knew that the owner of the peanut roaster was in the habit of placing his machine within the bound's of .the street and operating it there was not sufficiént to warrant the court in-holding as a matter of law that the village "through its proper officers authorised or'licensed* the owner of the roaster so. to place and operate it in the street, nor conclusively to. establish that the" village maintained a nuisance or authorized its, maintenance. "

It was the duty of the village to úse reasonable care, prudence and foresight to keep the street free from conditions endangering" the safety of the traveling public.- . And, whether the village-failed, in its duty in that regard, in omitting to. prevent the peanut roaster being placed and operated in the street, or in seeing that it was removed after it was placed there, was, I think, -a question of fact for a jury.

In determining that question it was. proper for the jury to. consider any fact or circumstance tending to show that the village: authorities could reasonably have apprehended the danger to persons in the street of placing and operating the roaster as it was placed and Operated, togethér with.the knowledge the. proper officers of the village had, or ought to have had thereof, in the proper discharge of their duty. ' • ■