Newall v. Bartlett — 23 N.Y. St. Rep. 732

Majority

p. 732

James H. Newall, Pl’ff and Resp’t, v. Edward B. Bartlett et al., Deft’s and App’lts.^[1]

(Court of Appeals, Second Division,

Filed June 4, 1889.)

Headnote

1. Negligence—Wharves and piers — Duties op occupants and lessees.

Occupants or lessees of a dock or pier, to which vessels are allowed or invited to make fast, and to discharge or receive passengers or freight, are bound to keep and maintain the same in a reasonable, safe condition, and free from defects dangerous to those engaged in or employed in carrying on such business.

2. Same—Negligence — When occupant liable por unsafe condition op.

The plaintiff was in the employment of a certain vessel which had just made fast to the defendant’s pier, and was about to discharge her cargo and passengers, with their baggage, upon defendant’s pier, and with defend- ■ ant’s consent. The plaintiff, while engaged in carrying baggage of a passenger of said vessel, was struck and injured by the falling of a gate, or door, upon the defendants’ pier. Held, that the defendants were engaged'in a quasi public employment, and were bound to have their pier and its machinery, to be used in the discharge of freight and passengers, in a reasonable, safe condition, so as to enable the plaintiff and all others legitimately engaged in the business to discharge their cargo and passengers; that the defendant was liable for injuries caused by the falling of the gate.

3. Evidence—Admissibility op.

One of the defendants died after the commencement of the suit, but before the trial. Held, that it was proper to show not only what was said to him, but also what he said to any person, in relation to the falling of the gate, or any of them, at any time before the accident and while the gates, and manner of operating them, remained the same.

4. Practice—What questions reviewed by court op appeals.

To raise any question upon the ruling of the trial court for review by the court of appeals, the exception must be specific, and point out the particular request to which it is intended to apply.

Goodrich, Beady & Platt, for defendants, appellants;' Nelson Smith, for plaintiff, respondent.

This is an appeal from the judgment of the general term of the superior court of the city of New York, affirming a judgment rendered upon the verdict of a jury-in favor of the plaintiff, and from an order of the trial court denying a motion to set aside the verdict and for a new trial.

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The action was brought to recover damages-for the injuries which the plaintiff alleged he had received to his person, through the negligence of the defendants, by the-falling of a gate or door upon the pier or wharf in the possession and under the control of the defendants.

The first three sections of the complaint were admitted by the answer, and the facts thus admitted were substantially these. That from the first day of May down to the time plaintiff was hurt, which was September 29, 1882, the above named defendants and John K. Bartlett, who died after the action was commenced, were copartners in business, under the firm name of E. B. Bartlett & Co., and were warehousemen.

They were in possession of the premises known as “Roberts’ stores,” consisting of six stores and the pier, or wharf, connected with them on the east side of East river, between Fulton and Wall streets, in the city of Brooklyn. The pier, or wharf, was about sixty-five feet wide, and extended into East river about three hundred and fifty feet. It was inclosed on the northerly and southerly side and' westerly end, and roofed, and had doors, or gates, about-eleven feet high and ten feet wide, forming openings into- or through the south side of the structure or building.

That by the consent of defendants’ firm, including John E. Bartlett, deceased, as a partner, the steamship Valencia, upon her arrival from Venezuela on September 29, 1882, came and made fast to defendant’s pier, and landed passengers and discharged her cargo; that such landing was pursuant to an understanding between defendants’ said firm and the owners of said steamship, or of her cargo or some-part of it.

It was proved, in addition to the facts admitted, that the plaintiff on the 29th of September, 1882, was employed by the master and owners upon the steamship Valencia, and was on'board of said ship when she arrived and made fast to this dock as aforesaid. It was made fast to the south side of this dock, and the plaintiff, in the performance of his duty as an employee on board of said ship was assisting in carrying a small trunk of baggage from the vessel on to this pier, and within the enclosure where the baggage off the passengers was being deposited. That he went through one of the open doorways with this trunk upon his shoulder, and when he had reached the inside of the structure through one of the doorways, and in setting down the trunk, one of the doors to these openings on the south side of the pier fell over and struck him on his back and side, and it is alleged injured him very seriously. The plaintiff' also made proof tending to show that defendant had notice-of the dangerous character of these doors; that they had.

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fallen, some of them, before, and one employee of defendant engaged upon the wharf, said to John K. Bartlett, one of the partners since deceased, that unless these fastenings were repaired, somebody would get killed. The plaintiff gave proof tending to show the extent and character of his injuries, and the jury rendered a verdict in his favor for two thousand dollars damages.

The defendant gavé evidence tending to show that these doors or gates were suspended by a cross piece at the top of the opening, on which were laid a rod of iron as a rail, and upon which wheels with curved rims made fast to the top of the door, and by this means the doors were closed or slid back, and thus made openings in the side of the building. The defendant also gave evidence tending to show that the-defendant’s own men and employees did not open the doors upon this occasion, but that some were opened by the employees on the steamer or by the stevedore, or some of his men in the employment of the steamer.

That the door was thrown off the rod or rail on which it was moved, or slid in opening or closing, by means of a skid laid from the vessel into the building through one of these openings. That in doing so with the door partially open, the skid being slid down on its edge, when it was thrown flat-ways, struck the edge of the door which was not fully open, and thus knocked the door off from its fastenings, and precipitated it upon the plaintiff who was, as before stated, •depositing baggage which he had brought from the vessel into the pier or building. There is some evidence tending to show that previous to sliding down and placing of the •skid, there had been from the same gangway, from which the skid was pushed out, a gang-plank from some other gangway, from the vessel on to the pier, and plaintiff had proceeded down the gang plank, one or the other, and had gone through these openings, and was depositing the trunk when the skid was placed, and, according to the contention of the defendants, struck the door and dislocated or threw the door.

It would thus seem that the plaintiff was inside of the building, and deposited the trunk, before the skid came in contact with the door, and threw it off its fastenings.

It is elementary law that the occupants or lessees of a dock ■or pier, to which vessels are allowed or invited to make fast, and to discharge or receive passengers or freight, are bound to keep and maintain the same in a reasonable, safe condition, and free from defects, dangerous to thos'e engaged in or employed in carrying on such business. Leary v. Woodruff, 4 Hun, 99 , affirmed, 76 N. Y., 617 ; Swords v. Edgar, 59 N. Y., 28 ; Wendell v. Baxter, 78 Mass.: 494, 496; Barber v. Abendroth, 102 N. Y., 406 ; 2 N. Y. State Rep., 432, Coughtry v. Globe Woolen Co., 56 N. Y., 124 . The plaintiff was in the employment of the vessel which had just made

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fast to defendants’ pier, and was about to discharge her cargo and passengers, with their baggage, upon defendants’ pier, and with defendants’ consent. The defendants were engaged in a quasi public employment, but whether public or private, the defendants were bound to have their pier, and its machinery to be used in the discharge of freight and passengers, in a reasonable, safe condition, so as to enable the plaintiff, and all others legitimately engaged in the business, to discharge their cargo and passengers.

Whether the doors or gates were properly constructed to secure safety; whether the principle on which they were constructed was reasonably safe, or if so, whether the principle was operated with reasonable guards to secure safety, or whether the machinery had got out of order and become unsafe, was a question of fact for the jury to determine. Various kinds of evidence were introduced, such as the carpenters who constructed the gates, and rollers, and other fixtures used in the operation of. the gates, the practical operation of the same kind, or similar apparatus in moving the gates upon other piers used in the same kind of business. There was evidence of the falling of these gates upon former occasion, and also evidence that this was the first that this gate, or any gate upon this pier, had fallen, and other evidence that the defendants were guilty of negligence. Such finding is conclusive in this case.

The plaintiff was called upon to show that defendants had knowledge that the doors or the machinery and fixtures were defective and unsafe. The method of showing that fact in this case was to show that John K. Bartlett, one of the partners in carrying on this wharfage business (and one of the defendants in this action, but who died before its. trial), knew of the gate’s falling, by seeing the gate off its support, and by being told of the fact by the witness Cavanagh. I see no objection to such testimony. It was proper to show not only what was said to John K. Bartlett, or what he said to any person in relation to the falling of the gate, or any of them, at any time before the accident, and while the gates and the manner of operating them remained the same. Chapman v. Erie Railway Co., 55 N. Y., 579 .

At the close of the evidence, the defendants’ counsel presented to the court eight requests to charge the jury. Without making any ruling upon these requests, the court proceeded to deliver his charge. At its close, the defendants’ counsel requested the court to charge upon two additional requests, which the court charged. The counsel then excepted to one instruction embodied in the charge as delivered. The case then shows that “the court refuses to charge defendants’ requests except as already charged, and

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defendants’ counsel takes an exception to the refusal to charge as to each and every one of said requests.

It does not appear which of the requests had been . charged, and, consequently, we are not advised as to which of the requests the exceptions apply.

To raise any question, upon the ruling of the trial court, for review in this court, the exception must be specific and point out the particular request to which it is intended to apply. Smedis v. Brooklyn, etc., R. R. Co., 88 N. Y., 14 .

The judgment should be affirmed, with costs.

All concur.