Saverio-Cella v. Brooklyn Union Elevated Railroad

The defendant, in its work of railroad construction, placed its windlass on the sidewalk of a city street, in front of the house of the plaintiff, in a populous quarter, where children were accustomed to play in the street. The windlass was about four feet high and three feet wide, working with a drum, and 'with a small and a large cogwheel. The defendant left it about 10 o’clock on Sunday morning, so tied that the drum and cogwheels could not be turned unless the tiers were removed. On Monday evening lads of that neighborhood cut the rope or cord tiers, procured and wound a child’s skipping rope around the drum, and then pulled and relaxed such rope, thus revolving the drum and giving play to the cogwheels. At this time the plaintiff, aged between 5 and 6 years, clambered up to the top of the windlass, caught Ms foot in the revolving cogwheels, and suffered an injury. The question of a nuisance per se is not in this case. The defendant testified that it was using the windlass in a proper place, and for a proper purpose. This was not questioned by the plaintiff, who upon the trial conceded that the windlass “was properly and lawfully engaged upon tMs public street in the construction of tMs elevated railroad structure; that the windlass in question was a proper appliance to be used by the defendant, with other mechanical appliances, in elevating materials used in the construction of this elevated railroad, which they might lawfully use in a proper way, and used upon the street surface; that it was an appropriate appliance to hoist with; that the defendant might properly employ the machine in hoisting material to the top of the structure.” It does not appear that the work was completed. The question of notice to the defendant after the fastenings were removed from the windlass is not raised. But the plaintiff declares upon the negligence of the defendant in leaving the machine unguarded and unprotected. The appellant confines his attack upon the judgment to the single point that the trial court should have dismissed the complaint on the ground of the plaintiff’s failure to prove negligence. There is no dispute but that the defendant left the windlass secured by a rope or a cord so that the drum could not be revolved or the cogs be put in play without first removing the tiers, or that the rope used by the defendant to revolve the drum was not left attached to the drum, or that the handles that worked the drum had been put away by the defendant. The only positive evidence as to the removal of the fastenings is that they were cut by the lads on the evening of the accident. Instead, then, of leaving an alluring or enticing machine, unguarded and unfastened, dangerous or that could be made dangerous simply by the mischief or meddling natural to young lads at play, the defendant tied it up, removed the drum rope, and unshipped the handles. Before it was made the instrument of this accident, several distinct acts of intervention were necessary, and were done: First, the tying rope was cut by the boys; second, the defective macMne, so to speak, was completed by the lads getting a skipping rope 16 feet long and

“From the point of view that contributory negligence is not to be imputed to children in certain circumstances, it would, at first sight, appear immaterial in what condition the machine was placed on the highway, if its being there arose from negligence. This, however, is not so. It is one thing to impute liability when the intervening agency that sets the mischief at work is the mere ordinary thoughtlessness arid ignorance of children, who might be expected to play with an object like a roller left in their way; and it is quite another to contemplate the cutting of a strong rope,—an act that is scarcely an ordinary and natural incident attendant on the neighborhood of young children.”

See, too, Jonasch v. Gaslight Co. (Super. N. Y.) 4 N. Y. Supp. 542 , affirmed in 117 N. Y. 641 , 22 N. E. 1131 ; Kolsti v. Railway Co., 32 Minn. 133 , 134, 19 N. W. 655 ; Haesley v. Railroad Co., 46 Minn. 233 , 236, 48 N. W. 1023 ; Bates v. Railway Co. (Tenn. Sup.) 15 S. W. 1069 . I think the principle as applicable is not affected by proof that the rope that bound the windlass wheels was stout or slender. The wheels were not put in play, in that the fastening was tugged at and worn away or snapped asunder, but because it was cut through. In Bates v. Railway Co., supra, the supreme court of Tennessee, in passing upon a case where a boy was injured by a turntable freed by another boy withdrawing the bolt, said:

“If the fastening was sufficient, if undisturbed, to hold the turntable securely in place, the fact that it could be unfastened by a great or slight exertion of strength directed immediately to that purpose could not properly be considered as evidence of negligence of the defendant.”

The law requires that the injury must so directly result from the wrongful act “that, according to common experience and the usual course of events, it might, under the particular circumstances, have reasonably been expected.” Jex v. Straus, 122 N. Y. 293 , 25 N. E. 478 . If the result was not within the ken of reasonable prudence and foresight, then proximate cause is not established. Beetz v. City of Brooklyn, 10 App. Div. 382 , 41 N. Y. Supp. 1009 , and authorities cited. And where the facts present a clear case the question becomes one of law. Id. I think that a man of reasonable prudence and care, under the circumstances of this case, might not reasonably have expected that the rope might be cut, and the machine might

Judgment and order reversed, and new trial granted; costs to abide the event. All concur.