Finnigan v. Biehl — 61 N.Y.S. 1116

Majority

p. 1116

FINNIGAN v. BIEHL.

(City Court of New York, General Term.

December 27, 1899.)

Headnote

1. Dangerous Premises—Contributory Negligence.

A boy making a reasonable effort to recover Ms hat after it had blown into a hole, over which was a tilted grating that was appurtenant to another’s premises, is not guilty of contributory negligence, precluding a recovery for injuries caused by the falling of the grating. »

2. Same—Negligence.

A landowner negligently permitting a grating appurtenant to his premises to be tilted over an open hole is liable for injuries caused by the fall-

p. 1117

ing of the grating on the fingers of a boy attempting to get his hat after it had blown into the hole.

3. Same—Landlord and Tenant.

A landlord is liable to third persons for injuries caused by Ms negligently permitting a grating used to cover a hole appurtenant to the premises to be tilted, in the absence of any provision in the lease requiring the tenant to keep the grating in repair.

Appeal from trial term.

Action by Joseph Finnigan, by his guardian, against Frederick Biehl. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before FITZSIMONS, C. J., and SCHUCHMAN and O’DWYER, JJ.

A. P. Orrell, for appellant.

A. Levy, for respondent.

The plaintiff, a boy aged 11 years, was injured by the fall of an iron grating which was appurtenant to the premises No. 465 West Fifty-First street. This was a corner house in this city. He lost one of his fingers, and one other was severely injured. These injuries were caused April 16, 1897, in the following manner: The grating was situated on the Fifty-First street side of the house, and was intended to cover and guard a hole beneath it. The plaintiff was on his way home from the Sacred Heart Church, situated on that street, where he had just attended religious service. The wind, which was blowing hard, blew his hat off his head, and into the hole mentioned, which was not then covered by the grating. The grating was standing up, and was tilted. While plaintiff was in the act of getting his hat out of the area hole, the grating fell upon his fingers, causing the injuries mentioned. The plaintiff certainly had a right to make all necessary and reasonable efforts to recover his hat, and we agree with the jury, after reading the testimony carefully, that he was not guilty of contributory negligence. In fact, we think that in his efforts to recover his hat he exercised as great care as could be expected, even if he were an adult. At least, that was a question of fact for the jury, and we shall not interfere with their conclusion upon that question. No doubt, it was the duty of the defendant to use all reasonable care to make and have said grating safe and sound. There is abundant evidence in the case proving that he failed to do so, and that he had at least constructive, if not actual, notice of its defective and dangerous condition. Even the testimony of defendant’s witnesses shows that it was out of order and dangerous about one month prior to the day in question, but that it was repaired and made safe. This fact, however, was contradicted, and under the circumstances was also a question for the jury to determine. It was proper to exclude the Butler lease. There is nothing in it that bound the tenant to repair the grating in question. We think that the verdict was a proper one, and that no error was committed during the trial.

The judgment must be affirmed, with costs.