120 N.E. 58 | NY | 1918
This is an action to recover damages for death alleged to have been caused by defendant's negligence. The complaint alleges in substance that defendant had a license or permit from the city of New York to use and occupy the inshore or most easterly dump on the northerly side of the pier at the foot of West Thirtieth street, Manhattan, together with the right to the use of the ramp or approach thereat and thereto; that by the terms of such license or permit he agreed to keep in repair the superstructure of said wharf property including the said ramp and approach; that he permitted contractors, stevedores and trucking men to use the wharf to discharge and receive garbage and other things upon and from boats; that plaintiff's intestate was employed by a corporation which had the privilege of using the dump and the ramp or approach thereto; that defendant allowed the ramp to become out of repair and in a dangerous condition; that while plaintiff's intestate was driving a loaded truck over the ramp to empty the same at the dump, a wheel of his truck went into a hole and plaintiff's intestate was jolted off, receiving injuries from which he died. The answer in terms admits that defendant agreed to keep the ramp in good order.
On the trial plaintiff offered the permit in evidence, and it was received without objection. By its terms it appears defendant had a permit to use and occupy *494
"all that certain public wharf property * * * to wit: the inshore or most easterly dump at the northerly side of the pier * * * together with the right to use the ramp or approachthereat." Also that defendant agreed to keep in good repair "the superstructure of said wharf property," i.e., the superstructure of the dump. Nothing contained in the agreement imposed upon the defendant the duty of keeping the ramp in repair. Thus plaintiff interjected into the trial a discrepancy between the allegations of her complaint and her proof, which would tend to defeat her entire cause of action, were it not for the admission in the answer, for the complaint charges defendant with no duty to keep the ramp in repair except "under said license or permit." But, for the purposes of the action, the allegations of the complaint admitted by the answer must be taken as true. (Code Civ. Pro. § 522.) Plaintiff did not waive the admission by going, unnecessarily and unwisely, into the proofs. Such admissions are conclusive and evidence inconsistent therewith must be disregarded. (Jones v. Morehead,
The next question is whether the evidence tended to show that the ramp was not in a reasonably safe condition for the use of plaintiff's intestate and others. The structure was 125 feet long and 19 feet wide. It was built on an incline so that the top was 10 to 12 feet from the ground. It was floored with spruce planks, 12 inches wide and 3 inches thick, laid crosswise over pine sheathing. Seven or eight hundred loads were driven up the ramp daily. Defendant did not use it exclusively. The city used it about as much as he did. Plaintiff's intestate was a teamster. About midway up the ramp on his way to the dump with a loaded truck, the front wagon wheel went into a rut on the surface of the ramp which was about two feet long, twelve inches wide and three inches deep. The top plank was worn down to the under sheathing. The jolt threw him off. The rear wheel went over his body. From the injuries thus sustained death resulted. Defendant having agreed with the city to assume its duty to keep the ramp in repair, was bound to exercise the same degree of care that would be required of the city. In determining what that degree of care is we must take heed of the place and the use for which it was intended and require reasonable care, considering the ordinary and accustomed manner of use, nothing more. Did defendant then have ordinary regard for the safety of the teamsters? The accident did not happen on a dark night. It happened about ten o'clock in the morning, in broad daylight. It was not one which common experience would suggest as *496
likely to happen. The condition of the planking on the ramp presented no greater danger than an ordinary rough pavement or the crossing of a railroad track. The depression was not in any way peculiar or specially calculated to result in injury. The defective condition was due to ordinary wear and tear. The rule has often been stated. When "the defect is so slight that no careful or prudent man would reasonably anticipate any danger from its existence but, still, an accident happens which could have been guarded against by the exercise of extraordinary care and foresight, the question of the defendant's responsibility is one of law." (Beltz v. City of Yonkers,
The judgment should be reversed and the complaint dismissed, with costs in all courts.
CUDDEBACK and McLAUGHLIN, JJ., concur, and HISCOCK, Ch. J., concurs in result; CARDOZO, CRANE and ANDREWS, JJ., dissent.
Judgment reversed, etc. *497