36 A.D. 246 | N.Y. App. Div. | 1899
The plaintiff entered into the ferry house of defendant fc~ cue-purpose of crossing from Jersey City to Hew York. Asule boat from Hew York came into the slip the gates in the ferrynouse were raised and passengers were allowed to go on the bridge. To avoid the throng of persons who were coming from tin \,0at the plaintiff-stepped to the side of the gangway for foot paJ¡^Sí3«3 and stood in front of the wheel that is used in fastening the boat to the bridge. While there a link in a chain which supports in part the weight of the bridge broke, and a rod to which it was attached fell on the plaintiff, breaking his leg. The action is brought to recover damages for that injury.
The appellant contends that the plaintiff was guilty of contributory negligence in assuming the position in which he was at'thethmi of the accident. The evidence for the defendant tended to show that the place where the plaintiff stood was railed off from the foot _ passengers’ gangway. This was denied by the plaintiff. We think that the question of contributor}7 negligence was one of fact for the jury in case they found there was no raffing there at the time. This case is very similar to that of Hazman v. The Hoboken Land & Improvement Co. (50 N. Y. 53). In that case the plaintiff, to avoid
Tiie only (yid.ence on the part of the plaintiff to establish the neg-hyvnc". !,f t]lc„ (7,.,»ndant was proof of the occurrence of the accident itself. -TI t penai.t argues that the doctrine of res ipsa loquitur only apphv- Whea the relation of carrier and passenger exists and the accident arises from some abnormal condition in the department of actual transportation.” We think that even, within th!S rule the plaintiff made out a prima facie case. But the proposition is incorrect. In the -leading case where the doctrine of res ipsa loquitur was applied there was no contractual relation between the parties (Mullen v. St. John, 57 N. Y. 567), and this court has recently held that the relation between the parties does not control the application of the rule. (Jones v. Union Railway Co., 18 App. Div. 267.) In the latest case in the Court of Appeals, that of Hogan v. Manhattan Railway Co. (149 N. Y. 23), the plaintiff was driving a coal cart on the street .under the elevated railroad, when an iron bar fell from that structure and injured him. Men were working thereon at the time. It was held that the evidence raised
' The learned trial court charged that the defendant was required to exercise the utmost human skill, care, vigilance and foresight for the protection of its passengers, and that the rule applied as well to the apparatus and appliances of the bridge as to the machinery of the ferryboat itself. To this the defendant excepted. We think the charge was correct, as applied to the case before us, and well supported by the authorities. Carriers of passengers are not in every branch of their service held to this strict accountability. But the rule has never been relaxed as to the condition of the machinery,' appliances, cars and. boats, or other vehicles of transportation. (Stierle v. Union Railway Co., 156 N. Y. 70.) The defendant’s bridge should' not be considered as merely an incident to its principal duty of transportation, and as similar to a platform Or waiting-room, but as an appliance used in the very transportation itself. It seems to have been so considered in Hazman v. The Hoboken Land & Improvement Co. (supra). An insecure condition of the bridge or its improper operation and adjustment might lead to most serious accidents. So that even if not considered as technically an appliance in the transportation itself, its improper condition or management would present'.a “situation from which grave injury might be expected and,which, therefore, imposed upon the carrier’s servants the duty to exercise the utmost skill and foresight to avoid it.” (Stierle v. Union Railway Co., opinion on motion for reargument, 156 N. Y. 684.)
■ The.judgment and order appealed from should be affirmed, with costs.
Judgment and order unanimously affirméd, with costs.