Boylan v. Brown — 43 N.Y. St. Rep. 412

Majority

p. 412

Patrick S. Boylan, App’lt, v. Charles A. Brown et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

Negligence—Contbibutoby—Defective dock.

Where the defects in a dumping dock are patent and discoverable on. superficial inspection, it is negligence for a person to drive upon such dock, ' and he cannot recover from the owners for injuries caused by sucll defects.

Appeal from judgment in favor of defendants dismissing the complaint.

Action by plaintiff as assignor of a claim for the loss of a horse, cart and harness, alleged to have caused by the defective condition of defendants’ dock.

The defendants maintained a dumping board for loading refuse material on scows, at the foot of Grouverneur street, East River, in the city of New York. The dumping board was a floating-platform, connected with the dock by a bridge. The scow to be loaded lay immediately alongside the dumping platform. Carts were backed down on the dumping platform to the very edge and then the bodies were tilted over the edge of the dump so as to shoot their contents into the scow beneath.

To stop the carts when backed down to unload, a string-piece, or square timber, about a foot high, was stretched across the edge of the dumping platform so that the wheels would strike against, it; and in addition, immediately in front of the string-piece, there-was a space of about seventeen inches where the flooring planks-had not been laid, leaving an opening into which the wheels of the cart would settle down, furnishing a further safeguard against backing over the string-piece. The open space of seventeen inches-was partly closed up by a slat or narrow piece of flooring. The string-piece was worn down three or four inches at. the time of the-accident. ;

The plaintiff’s assignor owned a horse and cart which was used in carting refuse materials to the dump. The horse and cart were-not hired by the defendants, nor did they exercise any custody or control over them, but were in the custody and control of" the-plaintiff’s assignor, and in the immediate charge of a driver who was employed by the plaintiff’s assignor. The plaintiff’s assignor simply paid to the defendants so much per load for the privilege of dumping refuse on their scows at the dump.

On the .day of the accident which is the subject matter of the-suit, the driver of the cart took a load of refuse to the dump, backed the cart down against the string-piece so that the wheels were in the open slot in the floor, tilted the body of the cart, shot the load upon the scow, and then drove the horse safely up the-bridge leading to the dock for a distance of ten feet or more, when another horse and cart coming down to unload drove immediately

p. 413

across, in front of the horse in question, on the wrong side, striking the horse and frightening him, so that instead of keeping on, over the bridge to the dock, he commenced suddenly and rapidly to back down the bridge and across the platform with such force that the wheels went across the open slot and over the string-piece, there being no load in the cart to hold it down by weight, and the cart fell from the platform, dragging the horse with it, so that both fell to the scow beneath. As the horse was dragged over by the cart his hind leg slipped through the slot or opening in the floor, and was broken as lie fell off the platform with the cart. The horse was then shot with a pistol; as he lay upon the scow.

J. Tredwell Richards, for resp’ts; A. M. & G. Card, for app’lt.

The point made by the defendants that “ the alleged: defect in the construction and condition of the dump being patent- and discoverable upon superficial inspection, the plaintiff’s assignor had the same means of knowledge in regard to it as the' defendants, and if it was negligence on the part of the defendants-•to provide such an appliance for use of the plaintiff’s assignor in unloading the horse and cart, it was also negligence on the part of plaintiff’s assignor to drive the horse and cart on such dump,”’ is good law and decisive of this appeal. Marsh v. Chickering, 101 N. Y., 396 ; Cahill v. Hilton, 106 id., 512: 11 St. Rep., 26 ; Splittorf v. State, 108 N. Y., 205 ; 13 St. Rep., 472 ; McQuigan v. D., L. & W. R. R. Co., 122 N. Y., 618 ; 34 St. Rep., 618 ; McGrath v. Walsh, 23 St. Rep., 63 .

But in addition it may be added that there was no adequate proof that the device for dumping here used was not proper for the purpose it was intended to serve.

• Again, it is doubtful if then ature or condition of this platform either caused or contributed to the accident, but rather that the accident was proximately caused by fright of the horse or unskillfulness of other drivers using the dump at the same time.

A nonsuit was properly granted, and the judgment must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.