148 N.Y.S. 67 | N.Y. App. Div. | 1914
The defendants appeal from a judgment entered against them upon a verdict of a jury, and from an order denying their motion for a new trial. According to the plaintiff’s proofs, the defendants made a trench or pit in a public highway in the borough of Queens, for the purpose of laying water mains. Late at night, on September 8, 1911, Walter Berry, the plaintiff’s intestate, a man over fifty years of age, in some manner fell into this trench or pit and suffered a compound fracture of his right leg, the broken bones protruding through the flesh; this injury brought about a surgical or hypostatic pneumonia,” which resulted in his death about a week later. The plaintiff’s complaint charged common-law negligence on the part of the defendants in failing to guard and light the excavation.' The proofs given by the plaintiff were to the effect that there were no barriers or lights about the excavation at the time of the accident. The decedent had no connection with the work of the defendants, and was but a mere wayfarer on the highway when he fell into the pit.
If there were no barriers or lights about this trench to warn and protect travelers on the highway, then their omission was concededly a negligent act on the part of those charged by law with the duty of maintaining them. As a part of her proofs,
Unquestionably, where the liability sought to be enforced arises wholly from a violation of a municipal ordinance, that instrument must be pleaded in order to enforce the liability. Such was the rule declared very early in this State in Harker v. Mayor, etc. (17 Wend. 199). But where liability arises from a violation of common-law duties and a municipal ordinance is received in evidence, though not pleaded, and simply as incidental or secondary evidence to prove negligence in the performance of common-law duties, I have found no decision in this State which holds such reception to have been error. I understand the rule to be otherwise than as now asserted by the appellants. From time to time this point has been raised on appeal in this court and has been rejected in the actual decisions of the court, but, however, in cases where the point was necessarily involved and which were decided without reported opinions, or with opinions containing no express reference to
In Dawson v. Sloan (49 N. Y. Super. Ct. 304) a local statute was admitted in evidence, though not pleaded, on the question of the defendant’s negligence, and an exception was taken. It was pointed out on appeal that it was not error to read the statute in evidence without it being pleaded, as the action was not brought on the statute and the latter was received merely as some evidence of negligence. This decision was affirmed in 100 New York, 620. The reason of the rule, as it has been applied in this State in many cases — without a break in its application, so far as I can find — is stated admirably in Bailey v. Kansas City (189 Mo. 503, 514), as follows: “ If a cause of action is based directly on a violation of a duty imposed alone by a municipal ordinance, the pleading should set forth the specific ordinance in hand because courts will not take judicial notice of its existence. * * * But if an ordinance of a city is used as a mere matter of evidence, no good reason is perceived why it should be pleaded; for to plead evidential facts is bad, and, on principle, the rule applies to ordinances. * * * Now, the case [there at bar] * * * is not based on the violation of a municipal ordinance but is based on the violation of
In the case now before us the trial court instructed the jury satisfactorily on the issues, and no exception was taken thereto by either party. The defendants offered proofs to show a guarding and lighting of the trench, but on the conflicting evidence the jury found against them. As the proper determination of the disputed facts in this case involved necessarily the question of the credibility of various sets of witnesses, and many of the defendants’ witnesses were “interested witnesses” in that their respective stories tended to reheve them from personal negligence, we do not feel called upon to interfere with the verdict of the jury on this point. It is argued,' however, that the complaint should have been dismissed on the ground that the plaintiff failed to show absence of contributory negligence On the part of the decedent. The cause of action arose, and the case was tried, before the recent amendment to the Code of Civil Procedure, which has transferred this burden to the defendant. (See Code Civ. Proc. § 841b, added by Laws of 1913, chap. 228.) It is true that there is no direct evidence on the part of the plaintiff to show that the decedent was free from contributory negligence. The man who fell into the pit is dead. No witness was produced who saw him in the act of falling. But direct evidence was given that he shouted for assistance and was found in the pit shortly after he got off a street car which ran on rails along one side of the trench. The surrounding circumstances, which I will not detail, supported strongly an inference of fact that the decedent as an ordinary wayfarer on a public street, exercising such care as the law requires from him, did not see this unguarded and unlighted hole, and fell into it accidentally; at least, under the facts in evidence, it was a fair question for the jury.
We are not unmindful of the opinion of Gray, J., in Peterson v. Ballantine & Sons (205 N. Y. 29)—-for we have had occasion to apply it not long ago — but there the decedent was run down by a truck while crossing a public street in broad daylight. Witnesses were produced who saw him both immediately before and at the time of the accident. The facts
The judgment and order should be affirmed, with costs.
Present — Jenks, P. J., Burr, Oabr, Stapleton and Putnam, JJ.
Judgment and order unanimously affirmed, with costs.