Dunn v. Ballantyne

The defendant, at the time of the occurrences to which this suit relates, was a part owner and the manager of a steam lighter. On the 28th day of February, 1894, this vessel discharged a quantity of heavy iron gas pipe on a bulkhead in the city of New York, between piers 13 and 14, East river. The pipe was consigned to the East River Gas Company. The defendant caused the pipe to be placed in two piles upon the bulkhead, so that a passage was left between them, through which persons could go to and from the street and the outer edge of the bulkhead. After the pipe was thus piled a representative of the East River Gas Company signed the receipts to the defendant therefor, and the lighter went away. On the following day the plaintiff, while lawfully upon the bulkhead, engaged in the general inspection of lighters belonging to the Tide-Water Oil Company, had occasion to pass between the two piles of pipe, in order to give directions to a man employed upon one of the vessels under his control, which la.y across the bulkhead, directly in front of the two piles. While in the passageway between them, one of the pipes fell upon him, breaking his leg and inflicting other injuries, on account of which he recovered a verdict of $2,600 upon the trial of this action.

The appellant makes three points: First, that the plaintiff took no care to avoid the injury, although the danger was apparent; second, that there was no sufficient proof of the defendant’s negligence, particularly because the pipe might have assumed a dangerous position after the defendant left it, and before the accident, by

Considering these points in their order, we think the question of contributory negligence was properly left to the jury. The situation of the vessel, whose presence at the bulkhead called the plaintiff there, appears to have been such as to make the passage between the two piles of pipe the most convenient access to the place where his duties called him. He was in haste in his work, and it can hardly have been manifest to one engaged as he was that the pipe was likely to fall just then, inasmuch as the piles had in fact remained for many hours without change.

As to the negligence of the defendant, there is ample proof to sustain the finding of the jury. Although there is some conflict in the testimony as to the precise position of the pipe which fell, with respect to the other pipes in the pile, at different times after they were unladen on the bulkhead, there was positive evidence from one witness, who appears to have had no interest in the case, from which the jury could infer that the pipe, at the time of the accident, remained in substantially the same position as that in which the defendant left it. This witness said he saw the pile about 15 minutes after the lighter had discharged the pipe, and that it was then in the same condition in which he saw it on the following day, between half-past 8 and 10 o’clock. The accident happened about noon.

The most important point made by the appellant is the third. The argument to support it is that the putting up of a pile of pipe on a bulkhead is analogous to the construction of a house. If the house is built by an independent contractor, he only is liable for injury sustained by third parties while work is going on. But when the house in completed and turned over to the owner, and accepted by him, so that he controls it, the liability of the contractor to third parties is terminated. We do not think such a case is analogous to that before us. Here the structure, if it may be so called, was put up in a public place, to which people generally have a right to resort, just as they have the right to use the streets of a city. While it is intended that the bulkhead shall be used for the temporary storage of goods in transit, no one has a right to store them there in such a manner as to endanger the persons of those who rightly resort to the wharf, any more than a person who is engaged in the construction of a house in a city has the right to pile bricks or building material upon the sidewalk or in the street in such a manner as to imperil passers-by. The case closely resembles Earl v. Crouch (Sup.) 10 N. Y. Supp. 882 ; Id., 16 N. Y. Supp. 770 ; Id., 131 N. Y. 613 , 30 N. E. 864 . In that action the defendant was a lumber dealer, who piled a quantity of lumber in a street in Rochester, in such a negligent manner that it fell upon a little child and caused his death. A verdict in favor of the administrator was sustained by the general term in the Fifth department, and affirmed in the court

T think the judgment should be affirmed. All concur.