Boehm ex rel. Boehm v. Hammond & Sloane, Inc.

Majority

p. 511

Charles W. Boehm, an Infant, by William C. Boehm, His Guardian ad Litem, Respondent, v. Hammond and Sloane, Incorporated, Appellant, Impleaded with Richard Knox, Defendant.

Second Department,

June 2, 1911.

Headnote

Negligence — pleading — complaint—cause of injury — cause of action against two defendants.

A complaint in an action to recover for personal injuries which alleges that one of the defendants while engaged in excavating caused some large rocks to he negligently and carelessly placed on a certain crosswalk; that plaintiff, an infant under fourteen year's, while crossing the street was caused to step on one o.f them, and that while in this position the other defendant, through his • servant, negligently drove a team attached to a wagon against the rock, throwing plaintiff under the wheels of the wagon, causing the injuries complained of, states a good cause of action against the first defendant.

Appeal by the defendant, Hammond and Sloane, Incorporated, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of December, 1910, upon the decision of the .court rendered after a trial at the Kings County Special Term overruling- the said defendant’s demurrer to the eomplaint. ‘

George V. Mullan, for the appellant.

Joseph A. Burdeau, for the respondent.

The complaint in this action alleges in substance that the defendant, Hammond and Sloane, Incorporated, while engaged in excavating in the street at the corner of Pacific street and Underhill avenue in the borough of Brooklyn, on the 26th day of August, 1901, caused certain large rocks to be negligently and carelessly placed upon the crosswalk at that point; that the plaintiff, an infant under fourteen years of age, in. the act of crossing the street at this place was caused to step upon one of these rocks so negligently placed, and that while in this position the defendant Knox, through his servant and employee, negligently and carelessly drove a team, attached

p. 512

to a wagón, against the rock, throwing the plaintiff under the wheels of the wagon and producing the injuries for which this action is brought. The defendant Hammond and Sloane, Incorporated, demurs to The complaint on. the ground that it does not state facts sufficient to constitute a cause of action as against it. The demurrer has been overruled, and appeal comes to this court.

The appellant urges that the complaint is defective against it,.on the ground that its alleged negligence was not the proximate cause of the accident; that it resulted .solely from the negligence of the driver of the defendant Knox’s team. If the complaint had alleged that the team came into collision with the plaintiff at this point, it would no doubt have been open to the objection urged; it would have been clear that the same accident might have happened if the plaintiff had been at' the same point without the presence of the rock on which he stood. But the complaint does not so state; it alleges that- the plaintiff was caused to step upon the rock in the act of crossing the street, and that while upon this rock the team came into collision with this large rock, and that this threw the plaintiff under the wheels, causing the injury. We think the complaint fairly permits of the inference that the accident would not have occurred except that the rock projected into the way far enough for it to be hit by the passing team, and that the collision of the wagon With the rock produced the conditions which resulted in the plaintiff’s injuries; that they were the efficient concurrent causes of the particular accident which has befallen the plaintiff. Under the liberal rules of pleading now in vogue, as against a demurrer, this complaint is clearly good, and it does not appear to be necessary to distinguish the authorities. It would he difficult to distinguish Sweet v. Perkins ( 196 N. Y. 482 ) from the case at bar, so' far as the principle is concerned, and it would' not be profitable to take up time in the effort.

The interlocutory judgment appealed from should be affirmed, with costs.

Jenks, P. J., Burr, Thomas and Oarr, JJ., concurred.

Interlocutory judgment affirmed, with costs.

Cases cited

Sweet v. Perkins 196 N. Y. 482 N.Y. 1909-11-30 p. 512