80 A.D. 352 | N.Y. App. Div. | 1903
The plaintiff has recovered a small judgment for the loss of the services of his minor child, who was injured by reason of the falling of a tombstone upon her in defendant’s cemetery. The plaintiff with his wife and three children were visiting the cemetery on the day of the accident, May 30, 1899, the plaintiff’s purpose being to decorate the grave of a buried child. The children were then seven years, two years and eight months, and three months old respectively. The plaintiff’s plot and the one from which the
On the day in question the plaintiff and his family reached the grave by walking upon what is referred to as a well-defined, beaten pathway, made by use, and extending from Orchard avenue to and beyond the place of the accident. Its width is stated at from twelve to twenty-one inches. It is merely the sod between the grave mounds tramped into a pathway. After the plaintiff had planted flowers and weeded and cleared up the grave, picking up bits of paper, etc., to carry and throw away, the party started to retrace their steps. The girl who was injured was the two years and eight months old child, and she was walking just ahead of her mother, the latter carrying the baby, and as the little girl was passing between the graves the tombstone fell upon her, breaking her leg.
It cannot be doubted that the defendant owes some duty of care to those who are lawfully on the premises to see to it that they are reasonably safe in so far as ordinary diligence will accomplish that result. The learned counsel for the defendant conceded on the trial that if any liability existed it attached to the defendant, but he insisted that express knowledge of the dangerous condition must first be acquired before the defendant can be held to be under any obligation to act. There is, however, nothing in the situation to remove the case from the operation of the general rules governing constructive notice. The defendant is the absolute owner of the property and in full possession and control of it, those to whom receipts for lots havp been given having no estate or interest in the land as such, but merely a right to its use for burial purposes, subject to the rules, regulations and general control of the defendant. (People ex rel. Coppers v. Trustees, 21 Hun, 184; Went v. Methodist Protestant Church, 80 id. 266; Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 503.) Even wdiere a deed had been given to a lot owner in the case last cited, Judge Folger .said (p.
The stone which fell in this case had been set more than a dozen years and apparently improperly. There were holes in the base and corresponding holes in the headstone for the purpose of inserting metallic dowels to keep the latter in place, but no dowels had been
The defendant owning the property and lawfully assuming to supervise and control its care and maintenance, including the keeping of the monuments and tombstones in this portion of the grounds in safe and proper condition, the application to it of the general rule of liability for negligence necessarily follows. (Donnelly v. Boston Catholic Cemetery, 146 Mass. 163.) The rule is fairly stated by Mr. Justice Willard Bartlett in George v. Cypress Hills Cemetery (32 App. Div. 281, 282) as follows: “ Having regard to the control which the law gave to the corporation, and which it actually exerted within the limits of the cemetery, I think its officers and agents were bound to exercise reasonable care not to permit the introduction into the lots, or upon or about the graves, of anything which they knew or ought to have known would constitute an unusual source of danger to persons lawfully visiting such lots or graves.” Gooley, in his work on Torts, at page 605, states that when one expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.” (See, also, Larkin v. O’Neill, 119 N. Y. 221; Hart v. Grennell, 122 id. 371; Ford v. L. S. & M. S. R. Co., 124 id. 493; Flynn v. Central R. R. Co., 142 id. 439, 445.)
It is obvious from what has been said that there is no element of contributory negligence in the proof, and that the defendant’s negligence is fairly established from the condition of the tombstone on the day it fell, and which must have been discoverable upon ordi
The judgment must be affirmed.
Bartlett, Woodward and Hooker, JJ., concurred; Jenks, J., dissented.
Judgment of the Municipal Court affirmed, with costs.