Porcella v. Mutual Reserve Fund Life Ass'n

Majority

p. 158

Frederick Porcella, an Infant, by Philip Bohnet, his Guardian ad Litem, Appellant, v. The Mutual Reserve Fund Life Association, Respondent.

Headnote

Negligence — injury to a boy slipping upon a sidewalk and falling into an elevatoo' pit.

A boy playing at a pile of bricks and -sand, located partly on a sidewalk and partly in a carriageway, about five feet from an open unguarded elevator pit, extending some twenty feet from the sidewalk level to the subcellar of r, building, in passing along the sidewalk about a foot from the edge of the pit, slipped upon grains of sand strewn upon the sidewalk, recovered himself, slipped again and fell into the pit, sustaining inj uries in his descent.

Held, that the maintenance of the open unguarded pit was a direct cause of such inj uries.

Appeal by the plaintiff, Frederick Porcella, an infant, by Philip Bohnet, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of October, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Trial Term, and also from an order, entered in said clerk’s office on the 12th day of October, 1899, denying the plaintiff’s mbtion for a new trial made Upon the minutes.

Thomas P. Wickes, for the appellant.

Charles C. Nadal, for the respondent.

On the trial of this action, the complaint was dismissed upon the ground that the proximate cause of the injury sustained, by the infant plaintiff was not to be found in any wrongful act or omission of the defendant. The action was brought to recover damages for personal injuries sustained by the infant plaintiff, who fell into a pit or opening at the side of a building owned by the defendant. In this pit was operated an elevator or lift, consisting of a platform moved up and down by machinery, from the sidewalk level to the subcellar below, a distance of some twenty feet. It appeared in evidence that the infant plaintiff and a younger sister were playing on the sidewalk in front of the elevator opening. Opposite that opening and about five feet from it was a pile of bricks and sand. One of the witnesses testified that the building was being repaired. The pile of bricks and sand was partly on the sidewalk and partly in the carriageway. An older brother of the infant plaintiff called him away from the pile at which he was playing, and in passing along about a foot from the southerly edge of the pit, the infant plaintiff slipped upon the grains of sand upon the sidewalk, recovered himself, slipped again and fell into the pit feet foremost, and in his descent his head was caught in some part of the apparatus and he sustained serious injuries. The evidence tends to show that the pit or hoistway, as it is called in the record, was unguarded, there being no barrier of any kind in front of it, the folding doors which were provided to cover it being open at the time the accident happened. The learned judge dismissed the complaint on the ground that the cause of the accident and injuries was an independent one, namely, that of the child slipping upon the sand on the sidewalk ; or, as he says, “ the child slipped and undoubtedly in slipping, rolled into this open space and received the injuries in some way.”

We do not think the question of proximate cause was the determinant one in this case. There was a direct connection between the wrong of the defendant in maintaining this open and unguarded pit upon the level of the sidewalk and the injury sustained by the infant plaintiff "by falling into that pit. That the slipping upon the sidewalk was the first incident in the chain of causation which led to his falling into the pit is quite clear,"but the injuries in the pit would not'have been sustained but for the wrong

p. 160

of the defendant in allowing it to remain unprotected and unguarded in or by the side of the highway. There was no sufficient and independent cause operating between the wrong and the injury. If the rule as to proximate cause applied in this case were to be sanctioned, then it is obvious that a person slipping upon the highway and into a pitfall negligently or unlawfully maintained as an appurtenance to property, is without remedy against a wrongdoer. The doctrine of proximate cause in its general definition is well understood, although it is very difficult of application in many concrete cases; but here, "the direct relation of cause and effect is established, for had not this pit been open and unguarded the infant plaintiff, notwithstanding his fall on the sidewalk, could not have sustained the injuries from which he suffered, and that is the cause to which those injuries are directly attributable.

We think the view taken by the learned judge was erroneous and the judgment must be reversed and anew trial ordered, with costs to abide the event.

Present—Yan Brunt, P. «L, Barrett, Rumsey, Patterson and McLaughlin, JJ.

Judgment reversed, new trial ordered, costs to appellant to abide event.