Lenz v. Aldrich

We agree with Mr. Justice HATCH in his view of the facts that the record before us presents, and shall add nothing to his statement, referring only to such facts as in our judgment control the disposition of the case. We differ from our associate in that we think that the facts are insufficient to warrant a jury in imputing negligence to the defendant. It was proven that the clothespole, when originally put up, was a good pole, and of proper material for the purpose. The life of such poles the evidence shows to be from eight to ten years, and this pole had been up but five years. The pole, at the time of the accident, had rotted almost through, about an inch above the ground. Experts testified that the decay must have been going on for a year. During this period the pole had been in constant use, and no one had noticed the decay, or any weakness or instability in it. From these facts two conclusions are irresistible: First, that ordinary, cursory examination would not have disclosed the decay or defect; second, that a critical examination or inspection would have exposed it. Neither the defendant nor her janitor had any knowledge or notice of the decayed condition of the pole. This, however, would not give the defendant immunity from liability, if, in the exercise of reasonable care, she or her agent should have discovered the defect. The question is therefore narrowed to this: Should the defendant have made a critical examination, in detail, of a clothespole, during a period when, by the ordinary life of such poles, the pole should have been sound, and there was nothing to give occasion for suspicion to the contrary? We think not. The case is not similar to that of a bridge, a high scaffold on which men are to work, or even to that of a telegraph pole in the public highway. In such cases the danger from defects in the structures are great, and if accident occurs it is apt to be serious in its results. The clothespole was some six inches or more in diameter, and seven feet high,—no very formidable structure, at the most. It was one of those common structures or appurtenances, used in or about dwellings, that, unless so old as to cause suspicion of unsoundness, are never subjected to more than a cursory examination. No one causes his ceiling to be inspected and carefully examined, unless cracks or other signs of weakness appear. One trusts to the security of the balusters along his stairs, so long as no signs of weakness or instability are manifest. The same is true of a fence; of the doors, windows, and stairs in a house. This conduct is justified by two reasons: First, the danger from defects in these structures, or parts of structures, is not apt to be great; second, nearly always, before they become so defective as to be dangerous, they show preliminary signs of weakness or insecurity manifest to the casual observer. We could permit a verdict for the plaintiff in this case to stand only by wholly discarding our common knowledge of the habits and conduct of the community. We are not wanting in authority to justify this conclusion. In Flood v. Telegraph Co., 131 N. Y. 603 , 30 N.

The judgment appealed from should be affirmed, with costs.

BROWN, P. J., and BARTLETT, J., concur. PRATT, J., does not vote.

(dissenting). By this action damages are sought to be recovered for personal injuries inflicted upon plaintiff by the falling of a pole standing upon defendant’s premises. The plaintiff, at the time of the reception of the injury, was between nine and ten years of age, and resided with her parents in an apartment house owned by defendant, known as “No. 6 Ocean Place,” in the city of Brooklyn. The apartments in this building were let to several different families, of which plaintiff’s family was one, who occupied the same. But defendant, as landlord, retained control of the building and of the yard in the rear thereof, and cared for and looked after the structures thereon. Within this yard there were erected four poles, about six inches in diameter at the base, and slightly tapering towards the top. Lines were attached thereon, and the same were used by the occupants of the building for the purpose of hanging clothes to dry. It appeared, without dispute, upon the trial, that plaintiff and other children of her family were in the habit of making use of this yard as a place to play. The plaintiff alleged in her complaint that she was lawfully upon the rear of the lot, and, while this allegation of the cómplaint was denied by the answer, yet upon the trial no point was made that plaintiff was not lawfully upon the premises when she received the injury, but it was assumed that she was lawfully there; and it appeared, without dispute, that this rear part was frequently used by the children as a playground: The pole which fell was placed where it stood, as were the other three, when the house was erected, in the spring of 1889. They were chestnut poles, and were supposed to be of the first quality when placed. It was testified to upon the trial that the life of such a pole, set as this was, was from eight to ten years. The poles were in constant use by the several inmates from the time they were placed up to the day of the accident, which occurred on the 17th day of August, 1894. The poles had been in the ground something over five years. At the time of the injury, plaintiff, in company with her sister, a small child, and another small girl, not of the family, went to the yard to play. While there, plaintiff reached up, took hold of the rope attached to the poles,—it being within easy reaching distance,—and stepped one or two steps forward and backward,' when the pole fell and inflicted the injuries complained of. Examination of the pole disclosed that it was rotted clear through, only a slight portion being sound, at a point from a half to an inch above the ground, and it was testified that this condition must have existed for about a year. This fact was not controverted by de

Let us now see if this ruling can be supported upon other grounds. It is claimed that the complaint is fatally defective in that it alleges solely that defendant is the owner of the property, and does not allege that she was aware of, or was required to have knowledge of, the defective condition of the pole. The complaint does allege that defendant erected and maintained the poles, and this allegation is admitted by the answer; and the proof upon the trial was that defendant had charge of this structure and place, and from time to time, through her agents, inspected the premises. I am of opinion that the complaint was sufficient in this respect. As I have before observed, no point was made upon the trial that plaintiff was not rightfully in the yard, nor could the point have been legally sustained, had it been made. This was a place where children played. A swing for children had at one time been attached to the pole which fell, and the fence, but it Was removed some time prior to the accident. The yard had been used by the children for so long a period that notice of such fact must be presumed to have been brought to the attention of the landlord, especially as she kept a janitor upon the premises, who must have had actual notice of such fact.

“Leaving a horse and cart in a public street, unattended and loose, subject to natural observation and interference from children passing along the street, might be held a pr. per question for the jury to say whether it was or was not negligence.”

In Canavan v. Stuyvesant, 7 Misc. Rep. 113 , 27 N. Y. Supp. 413 , the common pleas of New York held that tenants of a tenement house had an easement in the yard attached to the premises, for the purpose of drying clothes, and that it was a proper place for children of the tenants to play, under circumstances in many respects similar to the case now before us. I am of opinion, therefore, that no negligence could be attributed to plaintiff for being in the place where she was at the time when she received the injury. But this would not entirely exonerate her. It was conceded upon the trial that she was sui juris, and consequently the duty was imposed of exercising care; not necessarily the care of an adult person, but such degree of care as would reasonably be expected of a child of her age and capacity. Swift v. Railroad Co., 123 N. Y. 645 , 25 N. E. 378 . If she could see the defect in this pole, and was cognizant, or ought to have been, of its dangerous condition, and that it would be liable to fall if she took hold of the rope and swung or bore weight upon it, then she would be chargeable with negligence. But of these questions it was the province of the jury to give answer, and nothing which appeared in the case made it a question of law for the court. Whether the case presented proof which authorized a finding of negligence upon defendant’s part is a question not free from difficulty. It is well settled that the defendant, having reserved control and dominion over this yard, as to it retained the responsibility of general owner to the tenants of the building, and to all persons who were or might be lawfully thereon. This obligation is defined to be the exercise of reasonable care in keeping the structures upon the premises in suitable repair and condition, safe for the use required of them, or of which he has a reasonable expectation that they may be used. Muller v. Minken, 5 Misc. Rep. 444 , 26 N. Y. Supp. 801 ; Dollard v. Roberts, 130 N. Y. 273 , 29 N. E. 104 ; Looney v. McLean, 129 Mass. 33 . It is not essential that the landlord should have had actual notice of the existence of the defect. Such notice may be presumed from the length of time the structure has been out of repair, the character of the defect, the opportunity for observation, and many other conditions of which reasonable care would apprise him. These circumstances may constitute an unreasonable omission to ascertain the existence of the defect, and become the equivalent of actual notice. Alperin v. Earle, 55 Hun,

This discussion has proceeded thus far upon the doctrine of actionable negligence. But there is another principle of law applicable, which imposes a more absolute duty. The jury would have been authorized to say that the ease with which this child pulled this pole over, and the injuries which followed, made this structure a nuisance, and dangerous as a trap; In the present case the1 defendant owed a duty to the plaintiff. She was not a trespasser. She was rightfully upon these premises, and with the landlord’s consent. The duty which defendant owed was to keep the place reasonably safe. She could not maintain a dangerous structure, which the child might use, and'then exempt herself from liability by saying that it was not intended for such use. One who makes an excavation so near the highway that persons may fall therein is required to protect it. And when the owner of land invites another, either expressly or by implication, to come thereon, he cannot permit anything to exist thereon, in the nature of a snare, without being answerable for the consequences, where the person injured exercises ordinary care. This rule is recognized and asserted in the McAlpin and Walsh Cases, supra. The basis of the distinction rests in the fact that a duty is imposed. When this exists, liability follows for the maintenance of all structures, not apparently dangerous, which conceal a latent hidden danger, through which a person ignorant of the condition, and acting circumspectly, receives an injury. Hooper v. Railroad Co., 59 Hun, 125 , 13 N. Y. Supp. 151 , recognizes this principle, and illustrates its application by the distinction which it draws. In the present case, plaintiff had as much right to rely upon the fact that if she touched the lines the poles would not fall, as she had to assume that there were no pitfalls into which she might be cast. She had no more reason to apprehend that the pole would fall than that the wall'of the house would, unless she knew, or ought to have known, of the defect. And defendant had no more right to maintain the one in a dangerous condition than she had the other,—no more right to allow rotten structures upon her premises,- where they might fall or be pulled over by persons lawfully thereon, and inflict injury, than she would have to maintain an open airshaft, an unprotected excavation, a pile of material, or other dangerous structure which persons might make use of, come in' contact with, or fall into. I am therefore of opinion that a case was presented for the jury upon both grounds herein discussed, and that the dismissal of the complaint was error.

The judgment appealed from should be reversed, and a new trial granted; costs to abide the event.