Fitzpatrick v. Garrison & West Point Ferry Co.

Majority

p. 794

(Supreme Court, General Term, Second Department.

June 25, 1888.)

Headnote

Negligence—What Constitutes—Drawing Crowds in Public Place.

Where defendants are engaged in a business which naturally draws together numbers of people in a public place, and which the general public have long been accustomed to use, they are liable for an accident occurring there through the use of machinery so defective as to be imminently dangerous to human life, whereby plaintiff is injured, though plaintiff was at the place solely to gratify his curiosity; he not having been negligent in going there.

Appeal from circuit court, Orange county.

Action by Joseph H. Fitzpatrick, by John Reilly, his guardian ad litem, against the Garrison & West Point Ferry Company, for an injury received by plaintiff while standing on a dock watching defendant land passengers from its ferry-boat, by means of machinery. Rods, which formed part of such machinery, were pulled out of place by reason of planks, with which they were connected, having become rotten, whereby a heavy weight fell on plaintiff, and broke his leg. Verdict and judgment for plaintiff, and defendant appeals.

Scott & Hirschberg, (M. H. Hirscliberg, of counsel,) for appellant. William D. Dickey, (Lewis E. Carr, of counsel,) for respondent.

The accident under consideration occurred at a place which was open to the general public, which they had been long accustomed to use, and into which they were impliedly invited to enter. They had therefore a right to assume that no traps existed that would make such entry dangerous. The appellant claims that as the plaintiff came upon the premises solely to gratify his curiosity, and was at most but a licensee, the defendant owed him no duty of active vigilance. But defendant must be held to have contemplated the natural consequences of its acts. It carried on an occupation which would naturally draw together numbers of people in a public place, with instruments that were so defective as to be imminently dangerous to human life. That was a breach of duty to the public for which it may be justly held responsible. The plaintiff might well suppose that defendant’s business was conducted with ordinary care. There being no warning of danger, he may well have thought that none existed. In thus supposing, and in acting accordingly, the jury have found he was not guilty of negligence. We think the question was properly submitted, and by them properly decided. We also think this case is within the reason of the rule that holds the owner of the real estate liable when he allows a dangerous place to exist, without warning, so near a highway that by-passers will be liable to suffer. If the owner of real estate will dig a pit nigh to the public road, he must fence it, or be liable for the injuries it occasions. Such owner is bound to anticipate that a traveler may deviate from the beaten path; and a technical trespasser does not thereby forfeit the protection of the law. As in the case of the druggist who sends abroad a dangerous medicine under a false label, no “privity of contract” is necessary. The duty which one owes to the public to forbear from conduct which may endanger the safety of others is the foundation of the action.