Race v. Union Ferry Co. — 46 N.Y. St. Rep. 325

Majority

p. 325

Mary Louise Race, Resp’t, v. The Union Ferry Co., App’lt.

(City Court of Brooklyn, General Term,

Filed June 27, 1892.)

Headnote

1. Negligence—Ferry companies.

Plaintiff, who had frequently used defendant’s ferry, entered the bridge passage way in the evening when the bridge was dimly lighted, and was injured by falling from the bridge to the boat deck, which was eighteen inches below it. It appeared that the bridge rested on a float which was adjustable to the exact height of the boat deck, and that it was adjusted pretty nearly every time the boat came in, and that they are always on a level. Held, that the evidence was sufficient to carry the question of defendant’s negligence to the jury.

2. Same—Contributory.

Under the circumstances the jury was justified in finding plaintiff free from contributory negligence.

Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

Lowrey, Stone & Auerbach, for resp’t; Dailey, Bell & Crane, for app’lt.

This is an action to recover damages for personal injuries sustained through the alleged negligence of the defendant. The jury rendered a verdict for plaintiff for $2,500, and from the judgment entered thereupon, and from an order denying motion for a new trial, the defendant appeals. We will consider only the questions that appellant’s counsel presents to this court in his printed points and oral argument, viz., that plaintiff was negligent and defendant was not negligent on the occasion when the injuries were sustained.

Defendant runs its'ferry boats from the foot of Fulton street, Brooklyn, to the foot of Fulton street, New York city. Both

p. 326

ends of the boat are alike, and each end is rounded to fit into the concave end of the bridge, to which it is held by chains when the boat lies in the slip. The bridge is a floating one; that is, its outer end rests upon a float so constructed that the floor of the bridge is easily adjustable to the exact height of the deck of the boat. On each side of the bridge is a narrow passageway over which passengers walk upon the boat. The testimony discloses the fact that fifteen millions of people cross the river annually at this particular ferry, from which it is a fair inference that these narrow passageways are as much traveled as the most frequented sidewalk of the city. The testimony of defendant’s own witnesses and employees shows that when the boat is receiving passengers its deck and the bridge are always on about the same level, not varying more than one-half of an inch to one and a half inch, and that sometimes when the boat comes in heavily loaded, its deck is five or six inches below the floor of the bridge, “but it is adjusted pretty nearly every time the boat comes in. * * * It would not do to neglect it a minute.”

It is manifest that the facilities for and the practice of keeping the deck and bridge nearly on a level were most commendable and necessary precautions on the part of the defendant for the safety of the millions of persons walking over the bridge to the boat. The plaintiff testifies that she frequently used this ferry before the accident, and that deck and bridge were always on about the same level; that on December 6, 1890, in the evening, when the bridge was only dimly lighted, the gate to the bridge was open, and she entered upon the bridge passage-way assuming that it was in its usual condition, and walked upon the boat and was thrown down thereon because the boat deck was about eighteen inches below the bridge, which fact she learned only from her fall, and the distance of the step, as she did not look to see before she fell. We think this evidence was sufficient to carry the question of defendant’s negligence to the jury. It was an unusual management of the boat and bridge which, it seems, never occurred before. Snelling v. Brooklyn & N. Y. Ferry Co., 37 St. Rep., 184 ; same case, 128 N. Y., 579 ; 38 St. Rep., 1010 ; Bateman v. N. Y. C. & H. R. R. R. Co., 47 Hun, 429 ; 14 St. Rep., 454 .

We also think the jury was justified in finding that plaintiff was free from negligence, for she had used this ferry for years, and had always before found the bridge and deck on about the same level, as defendant’s own witnesses testify was always the case ; she approached the boat in the usual way, and was invited by the open gate to enter upon the bridge. She did not anticipate danger, nor did she look for any ; she assumed that the passage was in its usual safe condition and received no warning to the contrary. Ferris v. Union Ferry Co., 36 N. Y., 312 ; Swart v. Mayor, 23 St. Rep., 393 ; Weston v. N. Y. El. R. R. Cc., 73 N. Y., 595 .

Appellant’s counsel has failed to convince us that the verdict should be disturbed.

Judgment and order must be affirmed, with costs.

Osborne, J., concurs.