Pond v. Regis

(Carradine v. City of New York, 13 N Y 2d 291 , 295; emphasis as in original.) In an earlier case, recognized as a landmark decision, the same court said, “The fact that the boys may have been trespassers on the fairgrounds is immaterial, since there was sufficient evidence that the article which caused the injury was ‘ inherently dangerous ’. One who keeps an explosive substance is ‘bound to the exercise of a high degree of care to so keep it as to prevent injury to others.’ (Travell v. Bannerman, 174 N. Y. 47 , 51.) The degree of care required is commensurate with the risk involved, depending upon such circumstances as the ‘ dangerous character of the material ’ and its accessibility to others, particularly children whose presence should have been anticipated, regardless of whether or not they are trespassers.” (Kingsland v. Erie County Agric. Soc., 298 N. Y. 409 , 423-424.) This being the state of the law, the Trial Judge in the case before us, after his main charge to the jury and after acting upon a number of requests by each party, received and passed upon defendant’s final requests at the very conclusion of his instructions to the jury and just before the jurors were sent out. Defendant’s attorney first requested the court to eharge that “the Defendant Harold Regis would not be responsible for the act or acts of unauthorized personnel who might be on the premises without his permission and consent”; to which the court responded, “I so charge, and I think I previously have indicated that.” Counsel then requested the instruction “ that the Plaintiff Stephen Pond, on April 2, 1958, while he was on the premises of Harold Regis and at the time that he was on these premises prior to April 2, 1958, was unauthorized personnel”; and the court stated, “ I have so indicated and I so charge.” Plaintiffs took proper exceptions. Respondent’s brief seems to indicate that this somewhat unusual phrasing was derived from the Industrial Code and, in particular, from rules 39-3.3^[1] and 39-3.4^[2] . It is further indicated, if wo correctly read the brief, that the court’s reference to these rules in the main eharge prompted respondent’s requests; but the phrasing of the requests was, as appears from the footnote below, misleading and out of context with the language of the rules, which relate principally to the regulation of employment practices and in some respects, indeed, are designed to impose liability rather than to discharge it. In any event, and equally or more important, the clear effect of the instructions was to indicate to the jury that the infant plaintiff was not authorized to go upon the premises, which for purposes of this appeal may be assumed to be the fact; and that, therefore, defendant was not liable to him; but this was the very issue to be decided by the jury and not by the court. Consequently, the eharge diluted, if it did not indeed negate the clear rule of Kingsland (supra). The resulting prejudice was heightened by the Trial Judge’s observation, which in context was bound to be misleading, that with respect to defendant’s nonresponsibility to “unauthorized personnel”, he had previously “indicated that”; and, finally and importantly, by the circumstance that these instructions concluded the eharge and constituted the last word on the subject