56 N.Y.S. 18 | N.Y. App. Div. | 1899
The defendant maintains a yard on the north side of Fifty-sixth street, between Eleventh and Twelfth avenues, for the storage of asphalt in the prosecution of its business. This yard is inclosed by a fence in which there are gates suspended by overhead wheels upon a piece of timber, and opened by being pushed hack against the fence so that when a gate is opened it is suspended from the timber overhead and hangs upon the wheels. The defendant-had made a contract with one Mooney to cart asphalt from its yard. The plaintiff was in the employ of Mooney, and on the afternoon of September 3, 1896, he was just inside of one of the gates waiting to load his cart with asphalt. There were other horses and trucks ahead of him in the yard waiting for a load. The plaintiff left liis truck standing in line and went up near this gate to relieve himself, and as he stood near the gate it fell upon him, causing the injury to
We have the case of a person upon the premises of another, voluntarily and for his own purpose leaving a place of safety and going to anotlfer place. There was nothing that required him to select this particular position near the gate; nor is there anything to show that the defendant anticipated that the workmen employed upon the carts would place themselves in such a position as to require it to guard against the gate’s falling. When in that position the plaintiff was injured by an unexplained accident, for which the plaintiff’s testimony gives no cause.
The first question presented is whether the defendant owed any duty to the plaintiff to keep this gate, when open, in such a condition that it could not fall, so that a neglect to perform such duty would give the plaintiff a cause of action against the defendant. In the first place, there was no contractual relation between the plaintiff and the defendant. The plaintiff was not in the employ of the defendant, and the obligations which are imposed upon an employer, to furnish to his employee a safe and proper place to work, are not applicable. Undoubtedly, the defendant having made a contract with the plaintiff’s employer to do certain work, which required the plaintiff to go upon the premises, was bound to exercise care, so that the plaintiff, while upon the premises, in discharge of the work which he was employed to do, would not be injured, and a failure to exercise such care would be negligence, for which the defendant would be responsible. This duty to the plaintiff, however, only existed as to the premises to which the plaintiff was required to go in the j>erfoi’2nance of the contract between the defendant and the plaintiff’s employer. The defendant was not boiuid to anticipate that these workmen would leave their carts and go to a part of the yard to which they were not requi2-ed to go in carrying out the contract between the defendant a2id the plaintiff’s employer, or that the plaintiff would use this gate or fence for the purpose which he did. So long as the plaintiff ranained upon his cart, or was engaged in the performance of the work which he was employed to do, he was perfectly safe; and, assuming that this gate was defective and liable to fall without any apparent cause, there was nothing to justify an inference by the
The case of Sterger v. Van Sicklen (132 N. Y. 499) would seem to be decisive of this question. In that case the plaintiff, while descending a stairway leading from the rear of a house to the ground, in consequence of the breaking of a step, was injured. The premises were owned by the defendant but occupied by a tenant. The plaintiff occupied the adjoining house. The premises were separated in the rear by a fence, through which an opening had been made. The defendant knew that the steps were out of repair and promised to repair them. ' It was held that the defendant was not liable, the court saying : “ It may be observed in passing that the owner may ordinarily exercise such dominion over, and make such use of his real estate as he chooses, provided the rights of others are not thereby violated. No right of the plaintiff was violated. The enjoyment of the premises occupied by her was not interfered with. Had she remained on them the injury would not have occurred. But she chose to go on private property and up or down back steps, over which she had no authority, and as to which she had acquired no such interest by contract or otherwise as would have entitled her to demand as a right that the so-called nuisance be abated. As to her it was not a nuisance, because it did. not invade either her property or personal rights. * * * It is urged that a recovery can be supported because the defendant negligently per
Here the plaintiff entered these premises upon lawful business by the invitation of the defendant. He had a right to believe that all reasonable care had been used by the owner to protect him upon the portion of the premises where his work required him to go, but when he left the portion of the premises upon which he was invited and went over to this gate for reasons of his own, he went there at his own risk, and in that position he was not entitled to assume that the defendant would use all reasonable care to protect him. The same principle is applied in the case of Larmore v. Crown Point Iron Co. (101 N. Y. 391).
We think, also, it was error for the court to charge the jury that there was no evidence in the case to show that the plaintiff was guilty of contributory negligence. The plaintiff left a place of safety and deliberately placed himself in the position in which he was injured without invitation from the defendant. Viewing this act in its relation to the question of the negligence of the plaintiff,' we think it should have been submitted to the jury. Considering the method by which the gate was hung, the position in. which the plaintiff placed himself, the fact that horses and carts were standing in the gateway with a possibility of collisions happening between the side of the gate and the carts or trucks going in and out, and the
“ We are not permitted to guess or assume that the deceased was free from fault because he was injured, or that every person will take care of himself from regard to his own life and safety, for the reason that human experience shows that persons exposed to danger will frequently forego ordinary precautions of safety. It is incumbent upon the plaintiff to show, by a preponderance of evidence, such facts and circumstances as will satisfy the minds of the jurors that the deceased exercised proper care and prudence, and did not omit the precautions of a prudent man under the circumstances. The law demands proof and not mere surmises.” (Riordan v. The Ocean Steamship Company, 124 N. Y. 655.) We also think that the court erred in charging the plaintiff’s third request, that the defendant “ was in duty bound to the plaintiff to use such safeguards in securing the gate as experience has shown to be safe.” We do not understand that such a duty was imposed upon the defendant. The defendant was not confined to those appliances which experience has shown to be absolutely safe, but to those appliances which, under the circumstances, would appear to a reasonably prudent man to be a proper appliance to keep the premises in a safe and suitable condition, free from danger to those rightfully using them. To prohibit a person from using any appliances other than those that experience has shown to be absolutely safe, would prevent any one in possession of the premises from applying any device or apparatus which had not been used before, the absolute safety of which had not been demonstrated. We do not think that this is a correct statement of the obligation.
It" follows that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred ; O’Brien, J., dissented.
Judgment reversed, new trial ordered, costs to appellant to abide event.