Leary v. Woodruff — 11 N.Y. Sup. Ct. 99

Majority

p. 99

GEORGE LEARY, Plaintiff, v. ALBERT C. WOODRUFF, Defendant.

Headnote

Lessee of warehouse and bulk-head—duty of, to persons unloading at.

A lessee of a warehouse and the wharf in front thereof, who, for his own benefit, induces other persons to come there, is bound to keep his premises and the approaches thereto in suitable order for the business carried on there, and is liable to any person who is injured in consequence of any defect or obstacle, the existence of which could be discovered by a reasonable examination, commensurate with the use made of the premises.

Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term.

This action was brought by the plaintiff, as assignee of the owners and insurers of a barge, to recover the damages occasioned to her by being overturned in a slip at the foot of Harrison street, Brooklyn. The defendant, Woodruff, was the lessee of the warehouse, in which the cargo of the barge was to be stored, and of the bulk-head in front of it. By the terms of the lease the landlord was bound to repair and dredge the slip. As the tide went out, the barge settled upon a bar of sand, formed by the discharge from a sewer in Harrison street, and sunk. Neither the defendant nor the plaintiff knew of the existence of the bar.

E. D. McCarthy, for the plaintiff.

William W. Goodrich, for the defendant.

The plaintiff on a trial at the Kings Circuit was nonsuited, and brings this appeal. The action was for negligence. The defendant occupied a wharf and warehouses at Brooklyn on the East river; the plaintiff had his vessel there unloading a cargo, and she careened and sunk. It seems that a bank or mound had accumulated under the water in front of and adjacent to defendant’s premises, and, as the tide went out, the vessel met with the accident stated. The plaintiff says that, having been invited to the defend

p. 100

ant’s premises for the business in question, a duty devolved on the defendant to keep his premises and the approaches thereto which were under his control in suitable order for such business. This proposition is supported directly by the case of Carleton v. Franconia Iron and Steel Co.^[1] In that case a vessel sustained injuries from a rock in the bed of the dock under watez-, and the defendants were held liable. And the court says, even if defendants had no title to the dock, yet, if they occupied 'it and the adjoining wharf, and for their own benefit induced vessels to come to the wharf, their liability is not diminished. The like principle is held in Sweeny v. Old Colony R. R.^[2] A liability will not attach to the owner or occupant of the premises, if the defect or obstacle be so hidden that its existence could not be discovered by a reasonable examination commensurate with the use to be made of the premises,^[3] The defendant, among other matters, claimed that the unskillful manner of unloading and discharging cargo by the plaintiff, was the cause of, or contributed to, the accident. After testimony had been put in on-both sides, the court granted the defendant’s motion to dismiss the complaint, directing the exceptions to be heard in the first instance at the General Term. We are of opinion that this was error, and that upon the facts proven the plaintiff was entitled to go to the jury.

A new trial is therefore ordered, costs to abide event.

Present—Barnard, P. J., Tapper and Gilbert, JJ.

Exceptions allowed and new trial gz-anted, costs to abide event.

* 99 Mass., 216 .

† † 10 Allen (Mass.), 372.

‡ ‡ Shearman on Negligence, 658.