Fitzpatrick v. Garrisons & West Point Ferry Co. — 17 N.Y. St. Rep. 736

Majority

p. 736

Joseph H. Fitzpatrick, by John Reilly, his Guardian ad litem, Resp’t, v. The Garrisons and West Point Ferry Company, App’lt.

(Supreme Court, General Term, Second Department,

Filed June 25, 1888.)

Headnote

Negligence—Ferry company—Liability for injury caused by defective MACHINERY.

Where the defendant carried on an occupation (ferry across the Hudson river) 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, Held, that it was a breach of their duty to the public That they were liable for damages for injury resulting from the defective machinery.

3. Same—Injury to person not a passenger.

The plaintiff, while upon the landing dock, for the purpose of gratifying his curiosity, was injured by the falling of a weight, which was due to a bolt pulling out of planks that were rotten. The dock was open to the general public, and they had been long_ accustomed to use and go upon it. Held, that there was an implied invitation to the public to go on the dock. That they had a right to assume that no traps existed that would make such entry dangerous.

,3. Same—Rule as to owner of real estate.

This case comes within the reason of the rule that holds the owner of 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.

Appeal from a judgment in favor of the plaintiff, entered upon a verdict of a jury rendered at the Orange county circuit, and from an order denying a motion for a new trial upon the judge’s minutes. This action was for negligence causing personal injuries.

The defendant is a ferry company and has for years operated a ferry on the Hudson river from Garrisons, on the east side, to West Point and Cranstons, on the west side of the river. To facilitate the passage of persons and vehicles upon and from the ferry-boat, when in the slip, a movable bridge or apron was used, fastened by hinges to the dock. In the absence of the boat it was raised to an angle of about forty-five degrees, and was kept suspended by weights which consisted of half barrels filled with stone. Across them was a chain, and to the chain was attached a rope passing over a pulley in the top of a frame-work of timber, and down over a second pulley, where it was attached to a corner of the bridge by an iron bolt going through the plank and fastened by a nut on the under side. There were two of these weights, one on each side, attached to the outward corners of the bridge. The weights hung between two upright timbers, and the whole frame-work, as well as the

p. 737

bridge, were open and exposed to the weather at all seasons of the year.

On the 7th day of May, 1887, the defendant’s ferry-boat -came into this slip on one of its trips, having on board a musical instrument on wheels. People, young and old, gathered on the dock, which was an open and public place, and about the ferry slip, and among them came Joseph Fitzpatrick, the plaintiff, a boy of fourteen years of age. He stood on one side of the passageway of the boat, two or two and one-half feet from the posts, between which was one of the buckets used as a weight.

After the boat had reached the dock the bridge was brought down on the deck, and this musical machine that had attracted attention was moved forward to pass off the boat. As the wheels struck the bridge the jar or motion ■caused one of the bolts at the corner of the bridge to pull out through the plank, and the weight held by it fell, striking the plaintiff in the abdomen, cutting it open, and then crushing his leg.

The bolt pulled out because the plank was rotten and would no longer hold the weight; there were two thicknesses of plank, one running lengthwise of the bridge and another at the end, crosswise. Both planks were decayed, the lower one more than the upper.

Scott & Hirschberg, for app’lt; William D. Dickey, for resp’t.

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 defendants must be held to have contemplated the natural consequences of their acts. They 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 they 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 that he was not guilty of negligence.

We think the question was properly submitted, and by them properly decided.

p. 738

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.

Dykman, J., concurs; Barnard, P. J., not sitting.