Trentacoste v. Cronin

The plaintiff appeals from the dismissal of his complaint. The action is a statutory One by an administrator for damages for the death of his intestate. The evidence showed that the deceased, a laborer, was employed .in the night time in wheeling dirt along a wharf or pier and by means of a plank to a scow lying alongside. . As he was walking along this plank, which was not fastened either to the wharf or the scow, it moved or tilted and he fell into the water and was drowned. The plank was undoubtedly a “ way," and it was the duty of defendant to furnish a way which was reasonably safe both as to its construction and its lighting. We are of the opinion that upon the evidence it was a question fbr the jury whether or not defendant had fulfilled his duty in' that regard. So far as concerns- the question whether the-deceased, knowing the insecure character of the way , assumed the risk was certainly a question for the jury. (Reilly v. Troy Brick Co., 184 N. Y. 399 ; Clark v. N. Y. C. & H. R. R. R. Co., 191 id. 416 .) The judgment appealed from must be reversed and a new trial granted, with costs to appellant to abide the event. Present — Patterson, P. J., McLaughlin, Laughlin, Houghton and Scott, JJ. Judgment reversed, new trial ordered, costs to appellant to abide event.