Powers v. Owego Bridge Co. — 97 A.D. 477

Majority

p. 477

Dewey Powers, by Charlotte Powers, his Guardian ad Litem, Respondent, v. Owego Bridge Company, Appellant.

Headnote

Negligence— injury to children playing on lumber piled on a lot adjoining a street by the lessee thereof— the lessee is not liable where the lumber is so piled as not to be dangerous to one not interfering with it.

In an action brought to recover damages for personal injuries sustained by the plaintiff, a boy about six years of age, it appeared that the defendant corporation rented a vacant lot adjoining a street, which lot or a portion thereof the public had previously been in the habit of using as a dumping ground and as a means of passing from one street to another; that after the defendant took possession of the lot it placed thereon several piles of lumber, ranging from three to five feet in height, which it intended to use in the construction of an adjacent bridge; that while the plaintiff and several other children were playing about one of the lumber piles such pile fell upon and injured the plaintiff; that the accident was caused either by the act of the plaintiff in trying to climb upon the pile or by the act of his companions and himself in trying to get off the pile quickly. It further appeared that children playing upon the lot had been repeatedly driven off by employees of the defendant.

Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed;

That the plaintiff was a trespasser upon the lot, and that as it did not appear that the pile of lumber would be dangerous to those who did not interfere with it, it could not be said that the defendant was negligent.

p. 478

Appeal by the defendant, the Owego Bridge Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 19th day of October, 1903, upon the verdict of a jury for $500, and also from, an order entered in said clerk’s office on the 21st day of October, 1903, denying the defendant’s motion for a new trial made upon the minutes.

F. W. Clifford, for the appellant.

John F. Mason, for the respondent.

The defendant entered into a contract with the city of Rome to build a bridge over the Mohawk where Dominick street crosses the river. Defendant rented a vacant lot adjoining the street on the bank of the river and on this lot stored lumber and other materials to be used in the construction of the bridge. The lot had been used as a dumping ground, and there was evidence that persons had been in the habit of crossing it. As one witness says, “it is a short cut from East Dominick to Garden street.” After defendant took possession of the lot it piled materials across the path and at other places on the lot. It appears that children had played upon the lot, but had been repeatedly driven off by the employees of the defendant. At the time of the accident there were several piles of lumber upon the premises, ranging from three to five feet in height. The pile of lumber at which the accident happened was of timbers four by four and fourteen or fifteen feet long, the pile being four feet wide and about three and one-half feet high.

The plaintiff and several children older than he (he being about six years old) were playing about or on the lumber pile. Plaintiff’s version of the accident is that the boys were playing about the pile and plaintiff, in trying to climb upon the pile, pulled several of the pieces of timber upon him. The defendant’s witness says that the boys jumped from the pile and plaintiff fell off and the lumber on top of him. Defendant’s witnesses say but three sticks of timber were displaced, and the plaintiff not giving any number.

Plaintiff claims that the defendant was negligent in carelessly'

p. 479

piling the lumber; that it should have been carefully piled and had some crosspieces to bind it firmly.

The judgment should be reversed.

Defendant owed no duty to the plaintiff beyond that it owed to other strangers. It had the right to use the premises in the usual manner in the prosecution of its business, and was not bound to anticipate that a trespasser would interfere with its property. There can be no doubt that the accident was caused either by the act of the plaintiff in trying to climb upon the pile or by his companions and himself in trying to get off the pile quickly. In either case the defendant was not to blame.

Defendant piled its lumber upon the premises for the purpose of having it convenient for present use. It was not bound to pile it in any particular way. So long as it was not dangerous to those who did not interfere with it, the defendant was not negligent. The situation was open and apparent. It cannot be said that a pile of lumber away from a public place; that is, a place where the public has a right to be, is dangerous to the public; and whoever goes upon the premises and interferes with it cannot complain if injury results.

This case is quite distinguishable from those where lumber or building material has been insecurely piled upon the street so as to menace the safety of those passing, and from those wherein dangerous structures have been maintained upon premises to which the public has been invited; but it is within the principle of Walsh v. Fitchburg R. R. Co. ( 145 N. Y. 301 ). The lumber was piled in the usual way, and if it had not been piled at all the defendant, could not have been held responsible for an injury to a trespasser. We think the plaintiff failed to show any negligence on the part of the defendant, and for that reason the judgment must be reversed.

All concurred, except Williams, J., not voting.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.

Cases cited

Walsh v. Fitchburg Railroad 145 N. Y. 301 N.Y. 1895-03-12 p. 479