Opinion
January 10, 1908.
J. Mortimer Bell, for the appellant.
Terence J. McManus [ Abraham Gruber with him on the brief], for the respondent.
Present — WOODWARD, JENKS, HOOKER, GAYNOR and MILLER, JJ.
We reversed a former judgment for the plaintiff ( 112 App. Div. 291). This time the case went to the jury on the question whether it was not negligence in the city to allow the display of the fireworks in the public park so close to the street where the plaintiff was hit by the fragment of the steel pipe of a bomb which prematurely exploded. She was not a spectator of the exhibition, which was given by a private society under a license from the mayor authorized by an ordinance of the common council, and under the superintendence of police officers sent there for that purpose, but a passer by. The oral evidence is surprisingly meagre in respect of the distance of the spot where the fireworks were set and exploded from the street, which was the pivotal point of the case. But it was somewhere about the middle of the park; and by dint of scrutinizing a poor map of the park which got in evidence, it is found to be 450 feet long on the side where the plaintiff was, about 350 feet on the opposite side, and about 420 feet the other way. It thus appears that the said spot was about 210 feet or less from the plaintiff. This made the case one of fact for the jury, i.e., whether the spot was so close to the street as to make the exhibition dangerous to persons thereon ( Walker v. City of New York, 107 App. Div. 351).
The judgment and order should be affirmed.
Judgment and order unanimously affirmed, with costs.