Filippone v. Reisenburger — 135 A.D. 707

Majority

p. 707

Michele Filippone, Respondent, v. Alexander Reisenburger, Appellant.

Second Department,

December 3, 1909.

Headnote

Negligence — involuntary act — facts not showing negligence.

The law presumes that an act done.under.the influence of pressing danger was involuntary.

Where in a negligence action it appears that a contractor in trying to get upon a runway stepped upon a barrel which turned over and in order-to save himself from falling the contractor caught hold of the feet of plaintiff, a mason employed on the work, causing him to fall into the excavation, no actionable negligence is shown.

Hirsohberg, P. J., and Miller, J., dissented

Appeal by the defendant, Alexander Reisenburger, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 30th day of April, 1909.

p. 708

Jacob W. Kahn, for the appellant.

Charles L. Fasullo, for the respondent.

This action was to recover damages for negligence. The plaintiff, a brick mason, was employed by the defendant, a contractor, or by one Schilleppi, a sub-contractor, and was lawfully upon the premises at 58 Moore street, Brooklyn. He was standing on a run- • way which extended from, the sidewalk into the excavation, where a building was in course of construction. The runway was about eight feet from the bottom of the'excavation at the' entrance to the lot where the building was to be, and sloped gradually inward, where the other end rested on a barrel. The defendant, who was in the excavation, in trying to get upon the runway where the plaintiff stood, stepped upon a barrel which was standing nearby. The barrel “ turned over ” or “ fell over,” and the defendant, “ in order to save himself from falling,” caught hold of the plaintiff’s feet and caused him to fall into the excavation, with the result that the • plaintiff suffered' injuries to his body just above the- hip, not of a serious nature. This is the story of the occurrence as' told by the plaintiff, and is corroborated by one witness.

The defendant testified, that the barrel “ gave way ” or “ gave in ” as he stepped upon the top with one foot and took the plaintiff's hand held out to help him up on the runway, and that they both fell into the dirt together. One. witness corroborates the defendant’s statement that the plaintiff took him by the hand.and was trying to help him onto the runway when the barrel turned over or gave way. The plaintiff denies it.

In any view of the case actionable negligence was not shown, The occurrence seems to have been an accident, not due to any lack of reasonable care on the part of the defendant. The barrel was already standing near the runway when the defendant stepped upon it; it was not placed there by him for the purpose. There is no evidence whatever that the barrel was not in reasonably good condition, and none that it was so placed, that it necessarily would roll or turn when the defendant stepped upon it. The case is not within the principle of the squib case (Scott v. Shepherd, 2 W. Black. 892), nor that of Vandenburgh v. Truax ( 4 Den. 464 ), where

p. 709

persons doing illegal, mischievous or careless acts were held liable in damages for consequences directly and naturally resulting from . such conduct; but rather must be disposed of as governed by' the principle of pressing danger as applied in Laidlaw v. Sage ( 158 N. Y. 73 ), and in this way expressed in Moak’s Underhill on Torts (p. 14): “ The law presumes that an act or omission done or neglected under the influence of pressing danger, was done or neglected involuntarily.”

The judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event.

Jeniis and Rich, JJ., concurred; ITirschberg, P. J., and Miller, J., dissented.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

Cases cited

Laidlaw v. Sage 158 N. Y. 73 N.Y. 1899-01-10 p. 709