Holland v. Mayor of New York — 30 N.Y. St. Rep. 850

Majority

p. 850

Alice Holland, App’lt, v. The Mayor, etc., of New York, Resp’t.

(New York Common Pleas,

General Term,

Filed April 7, 1890.)

Headnote

Negligence—Injuries received while landing at public dock—When CITY NOT LIABLE FOB.

Plaintiff was injured by falling through an opening in an open stairway in a public dock while attempting to land by means of a gang plank which had no guards. No defect in the construction or maintenance of the dock was shown and no proof that the boat or gang plank were the property of defendant or that it was its duty to furnish her with safe and proper means of access to the dock. Held, that there was an utter absence of proof of any fact showing negligence on the part of the city or its servants, and that a dismissal of the complaint was proper.

Appeal from judgment dismissing the complaint.

Samuel H. Bandatl, for app’lt; Sidney J. Cowan, for resp’t.

Action to recover for personal injuries alleged to have been sustained through the negligence of defendant’s servants.

On December 12, 1887, about 9:30 P. M., the plaintiff, returning from a visit to the house of refuge on Bandall’s Island, in the East river, was conveyed by boat from thence to the defendant’s dock at the foot of East One Hundred and Twentieth street, in the city of New York. The transfer of passengers from the boat to the dock was effected by means of an adjustable gang-plank of about two and one-half feet in width, resting at one end upon the boat and at the other on an open stairway in the end of the dock, the stairway being about eight feet wide by six feet in depth. In attempting to reach the dock by means of the gangplank the plaintiff stepped off the plank to the side thereof, and falling through an opening left uncovered by the gang-plank, sustained severe injuries. On the trial the dock was shown to be public, owned and controlled by defendant, and that the open stairway therein had been constructed by the managers of the house of refuge with the permission of the defendant, to facilitate the lauding of passengers; that the gang-plank used in the transfer of passengers, and by means of which plaintiff attempted to reach the dock, was not provided with guards, and that in the use of the gang-plank in the manner described a portion of the stairway was necessarily left uncovered. It was also shown that the dock was not sufficiently lighted near the open stairway. There was, however, no proof that the boat or gang-plank, was the property of the defendant or that either was managed or operated by the defendant’s servants. It did not appear that the dock was in need of repair or that its construction was defective, or its condition dangerous. The open stairway was necessary in the landing of passengers and its maintenance was not a nuisance. The plaintiff was not injured while on the dock, but in an attempt to reach it, and the .means furnished her for access to the dock were not shown to have been furnished by defendant or in any way under the control or management of its servants. There is nothing in the proof adduced on behalf of the plaintiff from which the

p. 851

law could imply a duty on the part of the defendant to furnish the plaintiff with safe and proper means of access to the dock from the boat which conveyed her thither.

There is then an utter absence of proof of any fact upon which the negligence of the defendant’s servants at the time of the accident to the plaintiff could be predicated, and no error was committed by the trial judge in directing a dismissal of the complaint.

Judgment affirmed, with costs.

Daly, J., concurs.