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Home > Journals > Michigan Law Review > MLR > Volume 38 > Issue 8 (1940)

 

Abstract

Defendants were engaged in excavation work, which required the use of compressed air. The air was conducted from a compressor in the street across the sidewalk through a two-inch pipe. A permit had been obtained for crossing the sidewalk (but apparently there was some question as to whether its terms included crossing by the use of a pipe). This obstruction was flanked by two planks, two inches thick and twelve inches wide, beveled away from the pipe. One of the planks became tilted. Plaintiff stepped on it and it slipped under her weight, causing her to fall. In an action for the resulting injuries, the case was submitted on the theories of negligence and nuisance. The trial judge charged: "From the point of view of the claim that it was a nuisance . . . any obstruction like this which is allowed to become loose or otherwise so that it did tilt up and become a subject of danger to a pedestrian, constitutes a nuisance, and then the question of contributory negligence would not enter like it does on the theory of negligence only." Held, that so much of the charge as pertained to nuisance was error. Where the gravamen of the complaint is a nuisance which arises out of negligence, then contributory negligence is a defense; but where the gravamen is an absolute nuisance or a nuisance per se, plaintiff's actions must amount to a willing encounter with knowledge of the danger. Delaney v. Philhern Realty Holding Corp., 280 N. Y. 461, 21 N. E. (2d) 507 (1939).

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