78 N.Y.S. 355 | N.Y. App. Div. | 1902
By this action damages are sought to be recovered against the city of Hew York and one Gildersleeve, a contractor, for negligence resulting in. the death of plaintiff’s intestate. Upon the trial the complaint was dismissed as to- the contractor, and as no appeal was taken from that determination by the plaintiff, its correctness cannot be questioned upon this appeal.
By virtue of the provisions of chapter 320 of the Laws of 1887 authority is conferred upon the city of Hew York to select, locate and lay out public parks south of One Hundred and Fifty-fifth street, and by the provisions of section 9 of such act the department of public parks of the said city is vested and charged with the care, custody and construction of the same after they shall have been acquired, and is authorized and empowered to construct said parks and to erect and furnish therein for public purposes, and for the comfort, health and instruction of the people, such and so many buildings as the said department, with the concurrence of the board of estimate and apportionment, shall determine to be necessary and expedient. Pursuant to the provisions of this act, a contract was made by the said city, acting through the department of public parks, with the defendant Gildersleeve for the extension of East River Park. and for the work of regulating and grading the same, and. for the erection of a sea wall along the easterly front of the extension of East River Park from Eighty-sixth street to near the northerly line of Eighty-ninth street. The agreement was entered into betwéen the respective parties thereto on the 20th day of December, 1900, and immediately thereafter Gil
By virtue of 'the specifications attached to the contract and made a part thereof, the contractor became responsible for the general care, control and good order in the performance of the work, and was required to keep watchmen on the work night and day, and place proper guards around the same for the prevention of acci- . dents, and at night to put up and keep sufficient lights. The contractor had placed a two-incli pipe against and on the inside of these walls for the purpose of conveying water necessary in the prosecution of the work. The sea wall was two feet and two inches wide, and at the point of the accident was about ten inches above the dirt, and when completed was to be guarded by an iron railing. The latter had been partially placed in position but did not extend to the space where the accident happened. The extension was not opened to the public for any purpose; there was no driving nor travel thereon except by the teams of the contractor engaged in the prosecution of the work. Two watchmen were employed by the contractor, one during the day and the other at night, and these
The general rules applicable to this situation are reasonably well settled. If the city was under no obligation to the deceased to make the extension safe or to keep it in any particular condition, then the deceased is to be regarded as a trespasser, dr at the most a bare licensee, and the only obligation resting upon the city would
Applying the above rule to this case, it is clear that the city was not guilty of any wanton act from which the injury resulted. It took no affirmative action, it concealed nothing and the dangers of the situation were open, apparent and visible. There was nothing, therefore, in the situation upon which the liability of the city could be predicated. If, however, we assume that there was an implied invitation to go upon the- premises, then we think- that the city did
We are also of opinion that the deceased was guilty of contributory negligence as matter of law. He was concededly sui juris. The danger which confronted him was not only open and apparent, but he had been warned of the same by his father, and directed to stay away. He did not fall over the wall by reason of any hidden obstruction or of any latent defect. When the sling which he was using slipped from his hand he made a jump to recover it, and by such act precipitated himself over the wall. It was said in Rartfield v. Roper (21 Wend. 620), in speaking of an infant of tender years, “ when he complains of wrongs to himself, thq defendant has a right to insist that he should not have been the heedless instrument of his own injury.” And this language received the sanction of the Court of Appeals in Wendell v. N. Y. G. & H. R. R. R. Co. (91 N. Y. 420) and in principle in many other cases. (Williams v. Village of Port Leyden, 62 App. Div. 490; Whalen v. Citizens’ Gaslight Co., 151 N. Y. 70; Strutt v. Brooklyn & R. B. R. R. Co., 18 App. Div. 134; Thompson v. B. R. Co., 145 N. Y. 196.)
Had the deceased been told immediately prior to the accident that if he got upon the wall or jumped upon it he was in danger of falling over upon the rocks below, his knowledge of the dangers which confronted him would not have been increased. The occasion of his injury was a heedless attempt upon his part to recover the sling, and, being such, he clearly contributed to his death. This defeats a recovery.
Van Brunt, P. J., Ingraham and O’Brien, JJ., concurred; Laughlin, J., concurred on first ground.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.