Reynolds v. Starin — 50 A.D. 535

Majority

p. 535

Minnie G. Reynolds, Respondent, v. John H. Starin, Appellant.

Headnote

JYew York city—docks of, are public highways — knocking out the braces of a wall which falls and, injures a person on the street — it calls for explanation — it authorizes a verdict of negligence—request to charge without basis in the evidence.

The docks of the city of New York are open to the public, and are, for all the purposes of an action brought to recover damages for injuries sustained by the plaintiff while lawfully traveling thereon, subject to the same rules as those governing highways.

Evidence given in such an action to the effect that at the moment the plaintiff, who was riding a bicycle along a public highway, arrived in front of a building which was being demolished under the direction of an employee of the defendant, the braces holding the front wall in position were knocked out and the wall was permitted to fall into the street, is sufficient, in the absence of proof that the street had been previously barricaded; or that adequate warning had been given of the intention to remove the braces, to authorize the jury in finding that the defendant Was guilty of negligence.

Semble, that the falling of the wall is, in itself, sufficient evidence of negligence to require an explanation.

A request to charge may properly be refused where the evidence is not sufficient to warrant the assumption upon which the request is based.

Appeal by the defendant, John H. Starin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county'of New York on the 4th day of May, 1899, upon the verdict of a jury for $4,000, and also from an order •entered in said clerk’s office on the 2d day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.

This appeal was transferred from the first department to the second department.

Arnold W. Sherman, for the appellant.

George WeVwood Murray \_Hugh A. Bayne with him on the brief], for the respondent.

The facts developed on the trial of this action warranted a verdict in favor of the plaintiff, and an examination of the record, aided by the voluminous brief of the defendant’s attorney, fails to disclose any sufficient reason why this court should interfere with the judg ment or order appealed from.

p. 536

On the morning of the 21st day of September, 1896, the plaintiff, in company with her husband, journeyed from New Haven to the city of New York upon one of the defendant’s steamboats, landing at defendant’s pier, situated on the North river, on West street, between Dey and Cortlandt streets. The boat arrived at an early hour of -the' day and the plaintiff and her husband, leaving some hand baggage in charge of one of the defendant’s employees, took their bicycles and started out to get breakfast. After eating they visited various points in the vicinity, and about eleven-thirty A. m., when within a short distance of the place of the accident, they mounted their wheels and started to get their baggage. They rode along West street, the husband slightly in advance, intending to go to the boat for their baggage. There is some dispute as to whether the plaintiff was within the bounds of West street, or whether she had left the pavement and entered upon the approach to the defendant’s dock at the time of the accident. This fact is not material, as the rule is well established that the docks of the city of New York are open to the public, and are, for all the purposes of an action of this character, subject to the same rules as those governing highways. (Delaney v. Pennsylvania, R. R. Co., 78 Hun, 393 , 396, and authorities there cited.) At the moment of reaching the point in front of the defendant’s premises, workmen-, acting under the direction of defendant’s employee, knocked certain braces vffiich had been placed against the front walls of the old freight house from their position, and the wall fell, inflicting the injuries which are admitted to have been sustained by the plaintiff.

It is urged on this appeal that the plaintiff had not given evidence showing either the negligence of the defendant or the absence of contributory negligence on her own part; but we are of opinion that the facts which the evidence fully supports are sufficient for the purposes of this action. It may be that the plaintiff saw the condition of the building; it may be that it was her duty to see that it was being dismantled and torn down, but under the facts proven it is impossible to say, as a matter of law, that she was guilty of contributory negligence within any rule with which we are familiar. The front-wall of this building, which is conceded to have been high enough so that in falling it would reach nearly to the established line of the street, was not -reasonably to be expected to fall forward ;

p. 537

it was not to be expected that the defendant, acting through his servants or employees, would allow it to fall in such a position as to menace the lives of people coming upon the dock without some extraordinary precautions to warn the public of such an intention. Even had the plaintiff noticed the condition of the building, with its roof off, its rafters gone, windows out, etc., she would not have been warranted in assuming that the wall was to fall. In fact, the evidence shows conclusively that the wall was not in a position to fall until the exact moment when it did fall; that up to that time it was securely braced, and that it fell only when the defendant, through his employees, removed the braces which had held it in position. The plaintiff had no means of knowing the intention of the defendant; she could not know, in the absence of a barricade or some adequate warning, that it was the intention of the defendant to remove these braces and to permit the wall to fall. The fact that this wall, bordering upon a public highway largely used by the people, fell, is in itself evidence of negligence sufficient to call upon the defendant to explain. The plaintiff had established facts from which lack of contributory negligence might be inferred by the jury when she had told the story of her ride and of the results which followed while in the exercise of reasonable care she was guiding and controlling her bicycle and keeping within the limits of the highway or the approaches to the defendant’s dock, between which there were no visible lines of demarcation, barriers or danger signals. The evidence which defendant offered did not operate to convince.the jury of the lack of negligence on the part of the defendant in permitting the wall to fall without greater precautions against accidents to those who might be lawfully within the sphere of danger. We are satisfied that the plaintiff fairly sustained the burden which the law places upon her of establishing her cause of action.

So far as error is claimed to be based upon the refusal to charge the ninth request, that if the plaintiff suddenly turned and placed herself in a position of danger, the mere fact that the defendant’s employees failed to stop her in time to avoid the accident, does not in itself charge the defendant with negligence, we do not find facts sufficient to warrant the assumption on which the request is based.

p. 538

The exceptions to the admission of evidence have been examined, as well as those relating to the charge, but we find no reversible erroi in the case. The charge fully and carefully stated the law governing the case, and the judgment should not be disturbed.

The judgment and order appealed from should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.