Jonasch v. Standard Gas Co. — 56 N.Y. Super. Ct. 447

Majority

p. 447

ALOIS JONASCH, an Infant, etc., Respondent v. THE STANDARD GAS COMPANY, Appellant.

Headnote

Negligence and contributory negligence.

The plaintiff, an infant about six years old, seeks to recover damages for an injury to his hand caused by defendant’s alleged negligence in leaving a derrick on the street unfastened and unguarded.

At the time of the injury, that occurred on a Sunday, the plaintiff and other boys had been playing in the street in the vicinity of the derrick, and plaintiff sat down on the drum or cylinder of the derrick to peel some peanuts. While in that position and thus occupied, some boy turned the wheel of the derrick, and the plaintiff, to save himself from falling, grasped instinctively for support, and, in doing so, his hand was caught in the cogs of the cog-wheel of the derrick and one of his fingers was crushed. The plaintiff at the time was in charge of his brother, who was eleven years old, and accustomed to have the care of the plaintiff on the street by the direction of the parents of plaintiff

The trial judge left it to the jury to say whether the plaintiff was or was

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not sui juris, whether he was or was not guilty of contributory negligence ; aiid in case he was sui juris, whether the plaintiff’s brother or his parents were or were not guilty of contributory negligence; and in regard to the negligence of the defendant, the Mai judge left it to the jury to say: (1) whether the derrick, in the condition and place where it was left by defendant, was or was not a dangerous machine and likely to cause injury to children if left unguarded or unfastened; (2) whether, as a matter of fact, it was left unguarded or unfastened or both ; and (3) if it was both dangerous to children, and unguarded and unfastened, whether that condition, as a matter of fact, constituted negligence in the defendant.

Held, that the disposition of these questions by the Mai judge was, under all the circumstances appearing in evidence, as favorable to the defendant as he could expect; that there was no error in this submission, and there was sufficient evidence to sustain the same; and although the defendant produced sufficient evidence that, if believed by the jury, would sustain a verdict in his favor, but the result was only to create a conflict of evidence which the jury had to determine. That the instructions given to the jury, in their entirety, covered all that the defendant was entitled to, and the exceptions to the refusals of the judge to charge differently, are untenable.

That no error appears in any of the rulings of the trial judge, nor any sufficient reason for disturbing the verdict of the jury; nor can it be maintained that the verdict was excessive.

Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

Decided February 4, 1889.

Appeal from judgment entered in favor of plaintiff upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.

J. W. Hawes, for appellant.

F. Kurzman, for respondent.

This action was brought by the plaintiff, an infant, to recover damages for injury to his hand alleged to have been caused by defendant’s negligence in leaving a derrick on the street

p. 449

unfastened and unguarded. At the time of the injury, which occurred on a Sunday, the plaintiff was about six years old. He and other boys had been playing on the street and in the vicinity of this derrick, and then the plaintiff sat down on the drum or cylinder of the derrick to peel some peanuts. While in that position and thus occupied, some boy turned the wheel of the derrick. The plaintiff, to save himself from falling, grasped instinctively for support, and, in doing that, his hand Avas caught in the cogs of the cog-wheel, and one of his fingers Avas crushed. The plaintiff at the time Avas in charge of his brother, who was eleven years old, and accustomed to have the care of the plaintiff on the street by direction of his parents.

The trial judge left it to the jury to say AAdiether the plaintiff was or was not suijuris ; whether he was or was not guilty of contributory negligence in case he was sui juris; Avhether plaintiff’s brother Avas or was not guilty of contributory negligence, and whether plaintiff’s parents were or were not guilty of contributory negligence. The disposition thus made of these questions Avas, under all the circumstances appearing in evidence and in view of the instructions given to the jury, as favorable to the defendant as the latter could expect. Perhaps it was even more so.

Upon the question of defendant’s negligence the trial judge left it for the jury to say: (1) whether the derrick, in the condition and place where it was, was under all the circumstances a dangerous machine and likely to cause injury to children if unguarded or unfastened; (2) whether as matter of fact, it was left unguarded or unfastened or both; and (3) if it was both dangerous to children and unguarded or unfastened, whether that, as matter of fact, constituted negligence in the defendant.

There was no error in this submission. There was evidence on behalf of the plaintiff that the derrick was left in a portion of the city that is quite thickly inhabited ; that, as it was left, and bearing in mind the

p. 450

known curiosity and mischievousness of children, it was likely to cause injury to children unless guarded or fastened, and that at the time of the injury it was both unguarded and unfastened.

The defendant, it is true, produced evidence to the contrary, and sufficient, if believed by the jury, to sustain a verdict in favor of the defendant, but the result of it was only to create a conflict which the jury had to determine. The case was therefore properly submitted to the jury as above stated.

Moreover, the jury were expressly instructed to the effect that the defendant was not bound to keep a watchman there all the while; that if the derrick, as left, was a dangerous machine the defendant was bound only to use some precaution to prevent children from injuring themselves; and that if the wheel of the derrick was left fastened, the defendant was not bound to anticipate that any one would cut the fastenings, but in such case had a right to rely upon the strength of the rope and had done all that the law required to be done, and therefore was entitled to a verdict. The jury were also carefully instructed as to the burden of proof which was cast upon the plaintiff as to every proposition submitted.

The instructions given to the jury, in their entirety, covered all that the defendant was entitled to, and the exceptions taken by the defendant to the refusals of the trial judge to charge differently are untenable.

Upon the whole case no error appears in any of the rulings of the trial judge, nor any reason for disturbing the verdict of the jury. Nor can it be maintained that the verdict was excessive.

The judgment and order should be affirmed with costs*

Sedgwick, Ch. J., and Ingraham, J., concurred.