285 A.D. 1062 | N.Y. App. Div. | 1955
Action to recover damages for wrongful death. The plaintiff’s intestate was a longshoreman who was killed when a large metal door fell upon him on a pier where he was working for a stevedoring company. The door, known as door No. 13, was one of 170 doors on a shed on the pier. It was a sliding door at the top of which there were wheels which rolled on rails. The bottom of the door slid through a groove in the floor. The door had frequently jammed and become difficult to slide to the open or shut position. In such cases the longshoremen frequently used crowbars to move the door. On the night of the accident in suit, the deceased and several fellow longshoremen pushed on the door for five or ten minutes, without moving it, and upon continued pushing the door fell and struck the deceased. There is no evidence as to what caused the door to fall other than the facts which allow an inference that it was caused by application of force. The pier was owned by defendant New York Dock Company and was under lease to Barber Lines, Inc., of Delaware, which was in possession and occupancy and maintained a gate and guard at the entrance. Under the lease agreement the lessee covenanted to give the owner written notice of needed repairs and to admit the owner for the purpose of making such repairs. In addition, the agreement gave the owner the right to enter the premises for the purpose of examination and making repairs, but such acts were agreed not to constitute a waiver of the notice requirement. The agreement further provided that the owner would make repairs after such notice and that in default of the notice the owner would not be liable for injuries to persons on the premises caused directly or indirectly by lack of repairs. The agreement further provided that the lessee would indemnify and hold harmless the owner for injuries suffered on the premises unless caused by failure of the owner to make repairs after receiving the notice. The evidence establishes that the owner’s maintenance men frequently made repairs to the pier and on many occasions without having received the notice from the lessee. The evidence shows that the owner had no actual notice of any defect or unusual condition in door No. 13 prior to the accident. The owner’s offer to prove that after the accident the lessee gave notice in respect of door No. 13 and that the owner thereafter rehung the door and charged the expense to the lessee, was rejected. Plaintiff’s ease against the owner was submitted to the jury upon instructions that there was no evidence that the owner had actual notice of the condition of door No. 13, but that constructive notice might be found, and that the owner