McKenna v. East River Ferry Co. — 8 N.Y. St. Rep. 802

Majority

p. 802

Mary E. McKenna, as Adm’rx, etc., of John M. McKenna, deceased, App’lt, v. The East River Ferry Company, Resp’t.

(Supreme Court, General Term, Second Department,

Filed May 9, 1887.)

Headnote

Negligence—Contributory negligence—Boarding a ferry boat.

In an action to recover damages for an injury resulting in the death of intestate, received while boarding one of defendant’s boats, it appeared that there was a storm of rain, mingled with snow, at the time of the disaster, and the deceased stepped aboard of the boat as the bridge man was drawing the same up to the bridge, and while there was yet a space between the' boat and the bridge, and as he stepped he slipped, and his foot went down into that space and was caught and crushed. Held, that the intestate was-guilty of contributory negligence, and could not recover. The fatal step of the deceased, taken while the bridge man was in the performance of a, duty in his presence, which would insure his safety, was incautious and careless.

Appeal from a judgment of nonsuit rendered against the plaintiff, at the Queens County circuit court.

This action was brought to recover damages for personal, injuries, resulting in the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant in conveying and transporting the said plaintiff’s intestate from James’ Slip, in the city of New York, to Hunter’s Point, in Long Island City.

It appeared from all the evidence that the deceased stepped, on board before the boat was made fast to the dock, and while the employees were winding up the chains, which, made some noise. At the time he stepped aboard, the boat, was some distance away from the dock. The dock was. slippery on account of the rain and snow, which were falling. He slipped and his foot went between the boat and the bridge. The gates between the ferry entrance and the bridge had been open some time before the boat came in, and when it was at a distance of twenty feet from the bridge; before the boat came up to the bridge the passengers were standing on the bridge beyond the gate, and were all waiting on the bridge

The slip was full of ice and it was hard to make a landing..

Benjamin W. Downing, for app’lt Shipman Barlow, Larocque & Choate, for resp’t.

The intestate of the plaintiff sustained an injury to his foot while he was boarding one of the ferry boats of the defendant, which resulted in his death, and this-action is brought for the recovery of the damages sustained therefrom.

The trial of the cause was terminated by a dismissal of the complaint, and the plaintiff has appealed from the judgment.

A perusal of the testimony on behalf the plaintiff discloses an evident failure to exhibit the negligence of the defendant.

p. 803

as the sole cause of the injury which brought death to the deceased man.

There was a storm of rain mingled with snow at the time of the disaster, and the deceased stepped aboard of the boat as the bridge man was drawing the same up to the bridge, and while there was yet a space between the boat and the bridge, and as he stepped he slipped and his foot went down into that space and was caught and crushed.

That fatal step of the deceased, taken while the bridge man was in the performance of a duty in his presence, which would ensure his safety, was incautious and careless.

The unsteadiness of the vessel, the slippery condition of the deck, the precarious foothold he was certain to obtain, and the visible space over which he was compelled to step, were sufficient admonition to the deceased of the danger he would encounter by omitting to wait until the boat was made fast and steady.

Our conclusion is that the complaint was properly dismissed, and that the judgment should be affirmed.

Barnard, P. J., and Pratt, J., concur.