Blaustein v. Guindon — 64 N.Y. St. Rep. 194

Majority

p. 194

David M. Blaustein, as Administrator, etc., Resp’t, v. Eugene W. Guindon et al., App’lts.

(Supreme Court, General Term, First Department,

Filed December 14, 1894.)

Headnote

1. Negligence—Unloading from truck.

A party, though he has the right to unload a hogshead from a truck to the sidewalk, is bound to exercise reasonable care and prudence in so doing, so as not to injure persons lawfully passing along the sidewalk.

2. Same—Question of fact.

■ Whether he is negligent in so doing, without using danger signals or stationing any one to give notice or warning to pedestrians, is a question for the jury.

Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on. the minutes.

Allen W. Iloddart, for app’lt; G. Washburne Smith, for resp’t

This action was brought to recover damages for the death of Jennie Blaustein, the plaintiff’s intestate, caused by the alleged negligence of a servant of the defendants. On or about the 2d day of September, 1892, certain casks of sal soda were being unloaded from a wagon or truck belonging to defendants, at a soap

p. 195

factory on Munroe street, between Rutgers and Pike streets, in the city of New York. The driver had backed up the truck in front of the open doorway of the factory through which the hogsheads were to be rolled. The rear wheels stood two feet in on the sidewalk, which was fifteen feet wide. The driver had attached to the end of the truck a pair of skids, which were about six feet long, the lower end of which rested upon the sidewalk, leaving a space of three or four feet between the ends of the skids and the front edge of the building. There were four or five of these large hogsheads lying down on the truck. Beford the accident, one hogshead had been let down, and it was the second hogshead that rolled from the truck that killed the child. Plaintiff’s intestate was a li ttle girl, of the age of 12 years and 10 months, and at the time of the accident was walking in an easterly direction on the sidewalk of Munroe street, when, in passing between the ends of the skids and the factory, she was struck by a hogshead of sal soda, weighing 1,300 pounds, which rolled from the truck and over her, causing death. At the time of the accident the driver was standing upon the fcruck, with his back towards Pike street, and was stooping over, with his face downwards, just at the time the little girl was passing between the ends of the skids and the building; and at that instance the driver took the chock from under the hogshead, so that, in the language of the driver, it “ rolled down the skids as quick as lightning.” It is not claimed that any ropes or chains were used to let the hogshead down, nor were any danger signals used, nor anyone stationed to give notice or warning ; and instead of permitting the hogsheads to slide down endwise, which, it was testified, had been the custom of the driver on other occasions, on this, as it would appear, in order to save labor, he let the hogshead roll down as fast as it would go, so that it would roll a long way inside the factory. At the close of plaintiff’s case a motion to dismiss the complaint was made, upon the ground that there was no evidence of defendant’s negligence or freedom from contributory negligence on plaintiff’s part. The motion was denied, and at the end of the entire case was renewed and again denied, to which denials proper exceptions were taken, and it is upon these exceptions that the substantial questions presented by this appeal rest.

We think it was clearly a question for the jury as to whether the acts of the defendants’ driver in unloading the truck were or were not negligent Although 'the defendants had the right to unload the hogshead from the truck, they were bound to exercise reasonable care and prudence in so doing, so as not to injure persons lawfully passing along the sidewalk. And this could have been done either by letting it down-with ropes, or by having men enough to ease it down, or, if it was intended to roll it from the truck into the factory, by having some one stationed to warn pedestrians of the danger. After neglecting to adopt any such means of safety, then to argue that, upon such evidence, no question as to defendant’s negligence was presented, is to fail to recognize the force of facts and the obligations imposed upon those using the public streets, in respect to pedestrians. The little girl

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had an undoubted right to pass over the sidewalk; and while so passing, without notice or warning, she was struck by this heavy hogshead, which was rolled from the truck in a manner to preclude the possibility of her escape, even if she had seen it after it had started,—the testimony showing that the rapidity with which it left the truck gave to the hogshead a momentum sufficient, if unimpeded, to carry it inside the factory. Such conduct is as wanting in care as that of one who, without warning or signal of any kind, and without regard to the presence of pedestrians on the sidewalk, would hurl a barrel or brick, or any bulky or dangerous missile, from the windows of a building, upon the sidewalk. So with respect to the question of freedom from negligence of plaintiff’s intestate. She had the right to pass over the sidewalk, and was right in assuming that she would not be subjected, without warning or signal, to the danger of having thrown against her a hogehead from a truck, any more than that she would be subjected to danger from some heavy or dangerous missile thrown from a window into the street. She had no reason to anticipate that just as she was passing by the driver would let the hogshead roll down upon her; and, though she had knowledge of the presence of the truck, it was for the jury to determine whether her passing between the ends of the skids and the building was an act of negligence, which in any way contributed to her death.

In addition to these exceptions, which we do not regard as well founded, another one is presented, based upon the alleged error of the court in admitting, over defendants’ objection and exception, certain testimony. The driver has been' examined in chief by the defendants, and upon cross-examination he was asked the following question: “Q. So if a person was, say, one or two feet away from your skid at the instant you pull the chock out from under it, he could not get by it before he was struck, could he ?” . This was objected to as calling for a conclusion. The objection was overruled, and the defendants took an exception, and the witnessed answered, “Yes; it went down fast.’’ We do not think that in this any serious error was committed, for the reason that it was the cross-examination of the defendants’ witness, and the answer given was not responsive; but, -such as it was, it was permitted to stay, no motion having been made, upon this ground, to strike it out. The question thus asked, however, was immediately afterwards answered; and, when repeated, no objection was made to it, and the answer was elicited without objection.

Another ground .urged is that the damages were excessive. This, upon all the evidence and the rulings of the court, was a question of fact for the jury, which we are not in a position upon this record to review, because -the record has no statement that the case upon appeal contains all the evidence, and it has been many times held that in the absence of such a statement this court is precluded from reviewing any question of fact. Randall v. N. Y. El. Railroad Co., 76 Hun, 427 ; 59 St. Rep. 352 ; Koehler v. Hughes, 73 Hun, 167 ; 57 St. Rep. 131 ; Aldridge v. Aldridge, 120 N. Y. 616 ; 31 St. Rep. 948 . We think that the judgment is right, and that it should be affirmed, with costs. All concur.